Governor Newsom signed Senate Bill 331 (SB 331), which further limits the use of non-disclosure agreements (NDAs) and settlement agreement terms when settling employment legal claims involving harassment, discrimination, or retaliation.

Before the passage of SB 331, California’s restriction was limited to sex-related claims.  Specifically, since 2019 when SB 820 went into effect, California law prohibited a settlement agreement from preventing the disclosure of factual information regarding a claim in a civil or administrative action alleging sexual assault, sexual harassment, or an act of workplace harassment or discrimination based on sex.

SB 331 expands this prohibition to include other acts of workplace harassment or discrimination that are not based on sex. The bill also requires that any non-disparagement or other contractual provision that restricts an employee’s ability to disclose information related to the conditions of the workplace must include specific language related to the employee’s right to disclose information about unlawful acts in the workplace.

Note this bill is not retroactive and applies to agreements entered into on or after 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.

California’s Governor passed Assembly Bill 286 (AB 286) which amends the Fair Food Delivery Act of 2020. AB 286 makes it unlawful for a food delivery platform to charge a customer any purchase price for food or beverage that exceeds the price posted by the food facility on the food delivery platform’s internet website at the time of the order. AB 286 also prohibits food delivery platforms from retaining any portion of amounts designated as a tip or gratuity.  Instead, the food delivery platform must pay the entire tip or gratuity to the person delivering the food or beverage, and any tip or gratuity for a pickup order directly to the food facility. Finally, AB 286 requires the platform to disclose to the customer and the food facility certain specified information related to fees, commissions, and costs charged to both parties.

AB 286 fits the National Restaurant Association’s Public Policy Principles for Third-Party Delivery, which is a set of guidelines enacted to ease tensions between restaurants and third-party delivery services.  One of the key guidelines is that “Restaurants deserve transparency on fees charged by third-party delivery companies.”

California is not the first to pass legislation to address transparency in delivery services.  New York City and Chicago have passed similar legislation, and the State of Nevada is not far behind. Several delivery companies have already adjusted national operations to get ahead of the legislation and eliminate existing tensions.

This bill takes 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.

On October 5, 2021, Governor Newsom signed Assembly Bill 654 (AB 654), which expands the types of employers who are exempt from COVID-19 outbreak reporting requirements. Specifically, under AB 654, employers such as community clinics, adult day health centers, community care facilities, and child daycare facilities are exempt from COVID-19 outbreak reporting required under Assembly Bill 685 (AB 685) passed in 2020.

AB 654 also clarifies the time frame for employer notification of cases to public health agencies and narrows the definition of worksite for covered exposures. Additionally, AB 654 revises the requirement that employers provide information on COVID-19 employee-related benefits to only apply to employees who were on the premises at the same worksite as the qualifying individual within the infectious period. Similarly, the bill also revises the notification requirement regarding the cleaning and disinfection plan the employer is implementing to only apply to employees who were on the premises at the same worksite as the qualifying individual within the infectious period, and the employers of subcontracted employees who were on the premises at the same worksite as the qualifying individual within the infectious period.

This bill takes effect immediately as an urgency statute.

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

In early August, California’s Department of Public Health (CDPH) issued a mandate for health care workers to be vaccinated by September 30, 2021. Local government agencies within California, like the County of Los Angeles Department of Public Health, passed similar orders that expanded the CDPH mandate to, for example, non-medical in-home healthcare workers.

Then, on September 28, 2021, the CDPH expanded its mandate when it issued a new vaccine requirement, adding adult care facilities and direct care workers.

Under its new mandate, the CDPH now requires covered workers to be fully vaccinated by November 30, 2021.

Covered Workers

The following workers are covered by the order:

  • All workers who provide services or work in Adult and Senior Care Facilities licensed by the California Department of Social Services;
  • All in-home direct care services workers, including registered home care aides and certified home health aides except for those workers who only provide services to a recipient with whom they live or who are a family member of the recipient for whom they provide services;
  • All waiver personal care services (WPCS) providers, as defined by the California Department of Health Care Services, and in-home supportive services (IHSS) providers, as defined by the California Department of Social Services, except for those workers who only provide services to a recipient with whom they live or who are a family member of the recipient for whom they provide services;
  • All hospice workers who are providing services in the home or a licensed facility; and
  • All regional center employees, as well as service provider workers, who provide services to a consumer through the network of Regional Centers serving individuals with developmental and intellectual disabilities, except for those workers who only provide services to a recipient with whom they live or who are a family member of the recipient for whom they provide services.

Exemptions

The exceptions for those who work in-home, WPCS, and hospice, as detailed above, only apply if the workers provide services to a single household. If the workers provide services across multiple households, the exceptions do not apply, and the worker must comply with the order.

Workers may also be exempt from the vaccination requirements due to closely held religious beliefs or qualifying medical reasons. Workers who believe they are covered by either of these exemptions must provide their employer with a declination form signed by the worker.

Requirements for Unvaccinated Workers

If a worker is exempted from the vaccination requirements, either due to religious beliefs or qualifying medical reasons, the worker must comply with the following requirements:

  • Test for COVID-19 with either PCR or antigen test once weekly; and
  • Wear a surgical mask or higher-level respirator, such as an N95 filtering facepiece respirator, at all times while in the facility or home.

Recordkeeping

Employers of covered workers will be required to maintain records of workers’ vaccination or exemption status. Employers must also keep records regarding worker testing for those employees who are exempt from vaccination. These records must be kept confidential pursuant to applicable privacy laws and regulations.

If you have questions regarding compliance with the CDPH order, related vaccination orders, or other COVID-19 workplace requirements, please reach out to us, the Jackson Lewis attorney with whom you regularly work, or any member of our COVID-19 team.

Without any fanfare, Cal/OSHA updated its FAQs for the emergency temporary standards (ETS) on September 21, 2021, to incorporate new guidance from the California Department of Public Health (CDPH).

Importantly, the CDPH has relaxed its quarantine recommendations for unvaccinated, asymptomatic workers.  The ETS, which governs most workplaces in California, requires a 10-day quarantine period in most circumstances.  The recent guidance from the CDPH provides an even shorter quarantine option for asymptomatic unvaccinated employees.  Specifically,  asymptomatic unvaccinated employees may now end their quarantine either 10 days after exposure or 7 days after exposure if they test negative.  However, the diagnostic specimen has to be collected at least 5 days from the date of exposure to take advantage of this guidance.

In its FAQs, Cal/OSHA acknowledged that it is required by Executive Order N-84-20 to defer to CDPH’s quarantine lengths if they are shorter than the exclusion requirements in the ETS.  However, Cal/OSHA also noted, if an employer prevents an employee from complying with the shorter quarantine conditions recommended by the CDPH, then the longer quarantine requirements in the ETS will apply.  Additional highlights from the new CDPH guidance are below.

Isolation for Individuals who Test Positive

The CDPH recommends a symptom-based strategy for determining the duration of isolation for people with COVID-19 who are symptomatic. Under this strategy, persons with COVID-19 who have symptoms and were instructed to care for themselves at home may discontinue self-isolation under the following conditions:

  • At least 10 days have passed since symptom onset; AND
  • At least 24 hours have passed since the resolution of fever without the use of fever-reducing medications; AND
  • Other symptoms have improved.

For persons with COVID-19 who do not have any symptoms, the CDPH recommends they self-isolate at least 10 days from the date of the first positive COVID-19 diagnostic test.  If they develop symptoms during this time, the standard for symptomatic individuals above will apply instead.

Quarantine for Unvaccinated Persons

The CDPH recommends that unvaccinated persons who have had close contact with someone suspected or confirmed to have COVID-19 get tested and self-quarantine. Close contacts that remain asymptomatic may discontinue self-quarantine under the following conditions:

  • Quarantine can end after Day 10 from the date of last exposure without testing, OR
  • Quarantine can end after Day 7 if a diagnostic specimen is collected on day 5 or later from the date of exposure and the test is negative.

In addition to the conditions above, during the 14 days after exposure, the close contact should continue monitoring their symptoms, wear a mask when around others, wash their hands, avoid groups, and stay at least 6 feet from others. If the person develops symptoms within 14 days of exposure, they should self-isolate immediately and get tested.

Quarantine for Vaccinated Persons

Under the CDPH guidance, the exposed person does not have to quarantine if they are fully vaccinated before the exposure and have not developed symptoms. Similarly, if an exposed person tested positive for COVID-19 before their recent exposure and (1) it has been less than 3 months since they started having symptoms from their prior infection and (2) they have not had any new symptoms, they do not need to quarantine.

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.

Governor Newsom has signed Assembly Bill 1561 (AB 1561) to extend the sunset dates on the exemptions granted to licensed manicurists and construction trucking subcontractors from the provisions of Assembly Bill 5 (AB 5). AB 5 sets forth the test for whether a worker is an independent contractor or employee.

The exemptions will now sunset on January 1, 2025, providing each industry three additional years to determine compliance with AB 5.

AB 1561 also clarifies the scope of the exemption granted to a data aggregator and a research subject who willingly engages with a data aggregator to provide individualized feedback. The new legislation further clarifies that the exemption for the insurance industry extends to an individual providing claims adjusting or third-party administration work. Finally, as to the existing exemption for manufactured housing salespersons, AB 1561 specifies that the statutorily imposed duties of a manufactured housing dealer under the Health and Safety Code are not factors to be considered under the worker classification test.

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.

Read more about the new laws affecting employers in California.

The Governor has signed Assembly Bill 1506 (AB 1506) which extends the existing exemption for three more years for newspaper distributors and carriers from the “ABC Test” under Dynamex and Assembly Bill 5. The bill takes into account the reality that newspaper carriers often work for more than one newspaper, and requiring carriers to be classified as employees, would limit carriers’ opportunities and drive up the cost of newspaper deliveries.  The bill also requires newspaper distributors to submit specified information to the Labor and Workforce Development Agency on the number of carriers for which the publisher or distributor paid and did not pay payroll taxes for, as well as the wage rates and information to demonstrate compliance of their carrier with the Borello test, which is a multi-factor test for determining worker classification.

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.

Current law authorizes employers to pay less than minimum wage for employees with physical or mental disabilities under a subminimum wage certificate program.

California’s Governor has signed Senate Bill 639 (SB 639) which requires the development of a plan to phase out the use of this program. Under SB 639, the program will be phased out by January 1, 2025, and no new special licenses will be issued under the program after January 1, 2022.

Existing license holders will be required to meet benchmarks provided for in the phaseout plan in order to be relicensed.

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.

On September 27, 2021, Governor Newsom signed Senate Bill 646 (SB 646), which limits janitorial employees represented by a labor organization and covered by a collective bargaining agreement (CBA) in effect before July 1, 2028, from filing suit under the Private Attorneys General Act of 2004 (California Labor Code § 2689, et seq.)(PAGA).

Under SB 646, janitorial employees are no longer authorized to bring a civil action under PAGA if the applicable CBA provides for wages, hours worked (including overtime), and working conditions and fulfills other specified criteria.  “Janitorial employee” means an employee whose primary duties are “to clean and keep in an orderly condition commercial working areas and washrooms, or the premises of an office, multiunit residential facility, industrial facility, health care facility, amusement park, convention center, stadium, racetrack, arena, or retail establishment.”

The exemption does not cover the following:

  • Workers who specialize in window washing
  • Housekeeping staff who make beds and change linens as a primary responsibility
  • Workers working at airport facilities or cabin cleaning
  • Workers at hotels, card clubs, restaurants, or other foodservice operations
  • Grocery store employees and drug retail employees.

This PAGA exemption expires on the date the CBA expires or July 1, 2028, whichever is earlier.

This bill becomes effective January 1, 2022, and does not preclude a janitorial employee from pursuing any other civil action against their employer.

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.