Veterans Day is a federal holiday in the United States for honoring military veterans, who are people who have served in the United States Armed Forces. On this special day, it is also a time to remember workplace protections for veterans, including those currently serving in the military.

California’s Fair Employment and Housing Act (FEHA) and its implementing regulations prohibit workplace discrimination and harassment based on actual or perceived protected categories. One of the protected groups under the FEHA is members of the military or military veterans. As such, it is unlawful for employers to discriminate against or harass employees because of their military or veteran status.

But who is a veteran or military member under the FEHA? The answer to this question may seem obvious, however, who qualifies as a veteran or a military member in California may vary depending on the specific law involved. For example, under certain criminal code sections, only those on active-duty status or veteran status qualify. Under the Government Code pertaining to state civil service, “veteran” means those who have served full-time in the armed forces in times of national emergency or state military emergency or during any expedition of the armed forces.

However, the FEHA has a very broad definition of what constitutes “veteran or military status.” Under Government Code section 12926 (k) “veteran or military status” means a member or veteran of the United States Armed Forces, United States Armed Forces Reserve, the United States National Guard, and the California National Guard. There is no active duty, federal, or qualifying service requirement for the robust protection afforded under the FEHA.

Last year, the California legislature further clarified through Assembly Bill (AB) 3364 that the FEHA prohibits discrimination against individuals who either are veterans or because of the individual’s military status, instead of veteran and a certain articulated military status. Employers should keep this broad definition in mind when making decisions that could implicate the FEHA protections.

If you have questions about hiring, employing, and/or terminating past or present military personnel or related issues, contact a Jackson Lewis attorney to discuss.

Last week, the Occupational Safety and Health Administration (OSHA) issued an Emergency Temporary Standard (ETS) pertaining to COVID-19. While there are already lawsuits to block the Federal ETS, California employers are wondering what is going to happen with Cal/OSHA’s current ETS?

Prior to the issuance of the Federal ETS, Cal/OSHA had released a proposal to amend the state’s ETS. However, the proposed changes are not as stringent as the new Federal ETS.

On Monday, the Cal/OSHA Safety and Health Standards Board posted an agenda for a November 18, 2021 meeting indicating it will discuss the adoption of a new ETS, presumably to comply with the Federal ETS requirements. The agenda notes that the draft regulations will be posted on Cal/OSHA’s website as soon as feasible. In the meantime, California employers can only speculate as to what their new compliance requirements will be.

Generally, the States operating under a State Plan have 6 months to adopt a new permanent Federal standard. However, since OSHA adopted an ETS and not a permanent standard, the states, including California, only have 30 days to adopt their own ETS.

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 Ninth Circuit Court of Appeals has ruled that an ex-Tinder employee must arbitrate her claims against her former employer and cannot pursue her claims in court, even though her claims arose before she executed an arbitration agreement. In reaching this decision, the Ninth Circuit not only enforced the broad language of the parties’ arbitration agreement, but also held that a unilateral modification clause (granting the employer the right to make changes to the agreement) does not, in and of itself, render an arbitration agreement unenforceable. Elizabeth Sanfilippo v. Match Group LLC et al., Case No. 20-55819, 2021 U.S. App. Lexis 29263 (9th Cir. Sept. 28, 2021).

Read the full article at Jackson Lewis’ Litigators at Work Blog.

In June, California relaxed many of its COVID-19 restrictions, including allowing fully vaccinated individuals to go without a face covering indoors, with limited exception. Also in June, Cal/OSHA passed an amended Emergency Temporary Standard (“ETS”) that allowed for fully vaccinated employees to go without a face covering in most situations.

However, as California started to see an increase in COVID-19 cases, many county health departments reinstated mask mandates regardless of an individual’s vaccination status, including Los Angeles and Counties in the San Francisco Bay Area. And in July, the California Department of Public Health also issued a recommendation for universal masking, though it was not a mandate.

As California heads into the end of the year, some counties are now setting up criteria to lift mask mandates.

At the start of October, the Bay Area Health Officers issued criteria for lifting indoor masking requirements. Under these criteria, the following would need to occur for indoor masking requirements to be lifted:

  • The jurisdiction reaches the moderate (yellow) COVID-19 transmission tier as defined by the Centers for Disease Control & Prevention (CDC), and remains there for at least three weeks, AND
  • COVID-19 hospitalizations in the jurisdiction are low and stable, in the judgment of the health officer, AND
  • 80% of the jurisdiction’s total population is fully vaccinated, OR 8 weeks have passed since the COVID-19 vaccine has been authorized for emergency use for 5- to 11-year-olds.

Thus far, only Marin County has satisfied the criteria and lifted its mask mandate.

And at the start of November, the Los Angeles County Department of Public Health (LADPH) released its own framework for lifting its mask mandates.

For outdoor mega-events involving more than 10,000 people, LADPH outlined that before masking requirements are lifted, all of the following criteria need to be met:

  • L.A. County case rates must demonstrate three consecutive weeks at or below moderate transmission as defined by the CDC – that is, less than 50 new weekly cases per 100,000 residents;
  • hospitalizations remain low and stable at or below 600 daily COVID hospitalizations for three consecutive weeks;
  • 80% or more of county residents 12 and older are fully vaccinated; and,
  • there are no emerging reports of significantly circulating new variants of concern that threaten vaccine effectiveness.

For masking requirements to be lifted at indoor events or establishments involving fewer than 1,000 people, including indoor offices and worksites,

  • sites must have a vaccination verification process in place, and,
  • All employees and customers must be fully vaccinated, accommodating with additional requirements those employees with approved exemptions.
  • And L.A. County metrics must meet all of the same standards as for lifting masking requirements at outdoor mega-events.

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.

For an employee to be deemed exempt from overtime regulations under California law, the employee must fit into a category of work that is deemed exempt. The most common exemption is the administrative exemption, which includes workers who are employed in administrative, managerial, executive, or professional capacities. There are detailed requirements as to the amount of work performed in certain areas and most employees must also meet a minimum salary requirement, which for most of the exempt categories, is no less than two times the state minimum wage for full-time employment (40 hours).

However, for certain exempt categories, the Department of Industrial Relations (DIR) sets the minimum monthly salary based on increases to the California Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI). Under Labor Code section 515.5, certain computer software employees are one of the professions that must be paid a statutorily specified rate in order to be deemed exempt.

Effective January 1, 2022, the minimum hourly rate for computer software employees to meet the exemption will be $50.00, with the minimum monthly salary of $8,679.16 (annually $104,149.81). The current rates are $47.48 per hour, $8,242.32 monthly, and $98,907.70 annually.

Similarly, Under Labor 515.6, certain licensed physicians and surgeons must be paid a statutorily specified rate in order to be deemed exempt.  Effective January 1, 2022, the minimum hourly rate for licensed physicians and surgeons to meet the exemption will be $91.07.  The current hourly rate is $86.49.

If you have questions about overtime exemption requirements or related issues, contact a Jackson Lewis attorney to discuss.

Since the drama in passing the amended COVID-19 Emergency Temporary Standards (ETS) in June, the Cal/OSHA Board has been relatively quiet, though discussing a more permanent COVID-19 Standard. In the meantime, federal OSHA took the spotlight with President Biden’s COVID-19 Action Plan.

Currently, the Cal/OSHA ETS is set to expire on January 14, 2022. But unlike the main character in Disney’s Frozen, it appears Cal/OSHA does not intend to let it go. Recently Cal/OSHA released a proposed second re-adoption of the ETS.

Under the proposal, much of the ETS would remain the same as the Standards passed in June. Here is a summary of the key updates proposed:

Exclusion from Worksite

Consistent with the current ETS, employers must still exclude employees who are positive for COVID-19 until return-to-work requirements are met. Employers also must exclude employees who have had close contact with a positive individual unless the employee is fully vaccinated and asymptomatic.

Currently, employees who have a close contact but are fully vaccinated and remain asymptomatic don’t need to be excluded from the workplace. Under the proposed amendments, these employees must now wear a face-covering in the workplace for 14 days, maintain social distance for 14 days, and get a COVID-19 test three to five days after the close contact in order to take advantage of the exception.

Return-to-Work Criteria

Under the proposed revisions, persons who had close contact, but never developed COVID-19 symptoms may return to work (1) 14 days after the last known contact, (2) 10 days after the last known contact if they wear a face covering and socially distance for 14 days after the close contact, or (3) 7 days after the last known close contact if the person tests negative for COVID-19 using a polymerase chain reaction (PCR) test with the specimen taken 5 days or later after the close contact and if the individual wears a face covering and socially distances from others for 14 days after the close contact.

Persons who had close contact and developed COVID-19 symptoms can only return to work when (1) at least 24 hours have passed since a fever of 100.4 degrees Fahrenheit or higher has resolved without using a fever-reducing medication, (2) COVID-19 symptoms have improved, and (3) at least 10 days have passed since the COVID-19 symptoms first appeared.

The proposed revisions would also remove the return-to-work exemptions for essential critical infrastructure during staffing shortages.

Outbreaks and Testing

Employers, under the proposed revisions, would need to test even vaccinated, asymptomatic employees in an outbreak setting. An outbreak under the ETS is defined as three or more employees testing positive for COVID-19 within an exposed group during a 14-day period.

Moreover, employers will be required to provide testing for all close contacts, including vaccinated employees.

Face Coverings

Though state and local guidance regarding face coverings has fluctuated since June 2021, the ETS guidance will remain mostly the same.

However, both vaccinated and unvaccinated employees must wear face-covering during screening.

The Standards Board has indicated that the face coverings requirements in the ETS are intended to be the minimum requirement, while state and local public health departments may make more stringent mandates.

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.

The Fair Chance Act, commonly referred to as California’s “ban the box” law, imposes restrictions on employers with five or more employees from asking a job applicant any questions that seek the disclosure of their conviction history before making a conditional offer of employment. Last year, the Department of Fair Employment and Housing (DFEH) updated regulations governing background checks and published a Frequently Asked Questions page on the statute.

Recently, the DFEH announced new efforts to identify and correct violations of the statute by using technology to conduct mass searches of online job advertisements for potentially prohibited statements. The DFEH deems blanket statements in job advertisements indicating that the employer will not consider anyone with a criminal history to be violative of the statute. In its press release, the DFEH states in one day of review it found over 500 job advertisements with statements that violate the statute.

To assist employers with compliance with the Fair Chance Act, the DFEH has released a new Fair Chance Toolkit, that includes sample forms and guides.

If you have questions about compliance with the Fair Chance Act or related issues pertaining to applicant background checks, contact a Jackson Lewis attorney to discuss.

At the end of 2020, it seemed the legislature, the courts, and even California voters wanted to move away from the independent contractor test codified in Assembly Bill 5 (AB 5). However, during 2021, the pendulum seems to have swung back in favor of AB 5 and its guidelines on classifying workers as employees versus independent contractors.

In 2019, the Legislature passed AB 5 to add Section 2750.3 to the Labor Code, adopting and expanding the common law “ABC Test” to define “employee” not just for purposes of the Wage Orders, but also for purposes of the Labor Code and the Unemployment Insurance Code.

Under the AB 5-enhanced version of the ABC Test, a worker is presumed to be an employee, unless the hiring entity can establish that:

(A) The person is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact;

(B) The person performs work that is outside the usual course of the hiring entity’s business; and

(C) The person is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.

A worker cannot be classified as an independent contractor under the ABC Test unless all three factors are met, or unless one of the exemptions established by AB 5 is satisfied.

At the start of 2020, a U.S. District Court granted a preliminary injunction against the enforcement of AB 5 for truckers. Later that year, California’s Governor signed Assembly Bill 2257 (AB 2257), which recast, clarified, and expanded the exemptions to AB 5. Even California voters were in favor of an exemption for app-based rideshare and delivery companies and passed Proposition 22 in November 2020. It seemed that AB 5 was going out of vogue.

However, 2021 took a different turn. As the year started, the California Supreme Court issued its opinion in Vazquez v. Jan-Pro Franchising International, which held that Dynamex Operations West, Inc. v. Superior Court applied retroactively. Dynamex was the case that originally set forth the ABC Test. While this mainly affected litigation that had been filed before Dynamex, it set the tone for independent contractor issues for the rest of the year.

In April, the Federal 9th Circuit Court of Appeal reversed the district court’s preliminary injunction against AB 5 as to motor carriers. Currently, the California Trucking Association has a petition for writ of certiorari pending before the U.S. Supreme Court.

Similarly, Proposition 22, has been under attack in the courts, and recently a state court prohibited Proposition 22 from being applied. This decision also is under appeal before the California Court of Appeal.

In 2021, the California legislature also extended exemptions for some industries, who do not have to follow the ABC Test.  These exemptions include licensed manicurists and construction trucking subcontractors (AB 1561) and newspaper distributors and carriers (AB 1506).

If you have questions about AB 5 or need assistance with the classification of workers, contact a member of the Jackson Lewis Wage and Hour Practice Group or the attorney with whom you regularly work.

Governor Newsom signed Assembly Bill 237 (AB 237), which prohibits California public employers from discontinuing employer contributions for health care or other medical coverage for employees who, during the duration of an authorized strike, fall below the minimum hours worked to qualify for employee health care coverage.

The bill expressly provides that it is an unfair practice for covered public employers to:

  • Fail or refuse to maintain and pay for continued health care or other medical coverage for an enrolled employee or their enrolled dependents, for the duration of an authorized strike.
  • Fail to collect and remit the employee’s contributions to health care coverage.

This legislation goes into effect on January 1, 2022.

Jackson Lewis will continue tracking state legislation that is relevant to employers. If you have questions about the effects of this or other recent legislation contact a Jackson Lewis attorney to discuss.

With health-related data and how to protect it at the forefront of discussion since the start of the COVID-19 pandemic, this week California Governor Gavin Newsom signed into law two bills related to genetic data.  First, AB 825, will expand the definition of personal information to include genetic data, for data breach notification requirements for businesses and government agencies, as well as reasonable safeguard requirements for businesses. Second,  SB 41, will establish the Genetic Information Privacy Act, requiring a direct-to-consumer genetic testing company to provide a consumer with notice and consent regarding its genetic data collection, use and disclosure policies.

Read the full article at Jackson Lewis Workplace Privacy, Data Management & Security Report.