On September 27, 2021, the Governor of California signed Assembly Bill 73 (AB 73) which expands worker protections from wildfire smoke.

In response to the COVID-19 pandemic, California enacted Health & Safety Code section 131021 last year.  It requires the State Department of Public Health and Office of Emergency Services to establish a stockpile of personal protective equipment (PPE) to address pandemics and other health emergencies.  In developing the guidelines for creating this stockpile, the Department must consider, among other things, the amount and type of PPE required for health care workers and other “essential workers” during a 90-day period.

AB 73 broadens the scope of this law to specify that wildfire smoke events are considered health emergencies for these purposes.  In addition, the definition of an “essential worker” was expanded to include agricultural workers.  The bill goes into effect immediately.  As a practical result, the Department and Office of Emergency Services will need to re-evaluate the PPE stockpile to ensure it includes sufficient PPE to address wildfire smoke events and to protect agricultural workers during pandemics, wildfire smoke events, and other health emergencies.

The bill also requires the Division of Occupational Safety and Health (Division) to review and update the wildfire smoke training requirements that employers must follow.  Critically, the employee training needs to be provided in a language and manner that is readily understandable by employees.  Updates to these training requirements will be posted on the Division’s website.

Jackson Lewis will continue tracking state legislation that is relevant to employers. If you have questions about the effects of this recent legislation or related issues with Cal/OSHA compliance, please reach out to the Jackson Lewis attorney with whom you often work or any member of our Workplace Safety and Health Team.

California’s Governor has signed Senate Bill 606 (SB 606), which authorizes Cal/OSHA to issue a citation for egregious violation of an occupational safety or health standard, order, special order, or regulation for each willful violation determined by Cal/OSHA, and count each employee affected by the violation as a separate violation for purposes of the issuance of fines and penalties. This would mean that the maximum penalty would be per violation, per employee.

A violation is deemed egregious under the bill if one or more of the following is true:

  • The employer, intentionally through voluntary action or inaction, made no reasonable effort to eliminate the known violation.
  • The violations resulted in worker fatalities, a worksite catastrophe, or a large number of injuries or illnesses.
  • The violations resulted in persistently high rates of worker injuries or illnesses.
  •  The employer has an extensive history of prior violations of this section of the labor code.
  • The employer has intentionally disregarded their health and safety responsibilities.
  • The employer’s conduct, taken as a whole, amounts to clear bad faith in the performance of their duties to provide occupational safety to their employees.
  • The employer has committed a large number of violations to undermine the effectiveness of any safety and health program that might be in place.

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 September 27, 2021, the Governor signed Senate Bill 62 (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.

SB 62 specifies that a garment manufacturer, contractor, or brand guarantor who contracts with another person for the purpose of garment manufacturing operations would be jointly and severally liable with any other manufacturer or contract for an employee’s full amount of unpaid wages and any other compensation, including interest, attorney’s fees, and civil penalties, as specified in the Labor Code if a violation is found.  Garment manufacturers and contractors would be liable for the full amount of damages and penalties for any violation, as specified in the Labor Code.

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.  Employers must pay employees who are engaged in the process of garment manufacturing no less than minimum wage.  Garment manufacturers and contractors may be subject to statutory damages per employee for each pay period during which an employee is paid by the piece or unit.

SB 62 will take 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 September 27, 2021, Governor Newsom signed Assembly Bill 1033 (AB 1033), which provides that employers must grant eligible employees up to 12 weeks of job-protected time off from work annually for the purposes of providing care to a parent-in-law with a serious medical condition under the California Family Rights Act (CFRA).

The bill also modifies procedural aspects of the Department of Fair Employment and Housing’s (DFEH) pilot program for mediating family leave disputes between small businesses and their employees. When a small business employee requests an immediate right-to-sue letter based on an alleged CFRA violation, that employee must inform DFEH’s mediation program of the employee’s intent to file a civil action in court prior to filing that action. The bill also sets forth other requirements for completion of the DFEH mediation program prior to an employee’s claim proceeding to a civil court.

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.

Employers of all sizes, potentially including individual owners, managers and executives, should be aware of heavier penalties or jail time for engaging in wage theft. According to the California Labor Commissioner’s Office, wage theft occurs anytime an employer does not pay workers what they are owed by law.

California’s Governor signed Assembly Bill 1003 (AB 1003), which creates a new type of grand theft for the intentional theft of wages in an amount greater than $950 from any one employee, or $2,350 in the aggregate from two or more employees by an employer in any consecutive 12-month period. Following the trend of other recently passed laws broadening the scope of legal protections for workers, this legislation includes independent contractors within the meaning of employee. Therefore, hiring entities of independent contractors would face the same penalties or jail time for engaging in wage theft.

The new legislation allows wages, tips, or other compensation that are the subject of a prosecution to be recovered as restitution. Under existing law, grand theft is punishable either as a misdemeanor by imprisonment in a county jail for up to 1 year or as a felony by imprisonment in county jail for 16 months or 2 or 3 years, by a specified fine, or by a fine and that imprisonment.

All employers and hiring entities of independent contractors should work to ensure their compensation policies and practices are fully compliant with existing laws.

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.

There are many employment law bills currently sitting on Governor Newsom’s desk, but back in July the Governor signed Senate Bill 657 (SB 657) to make a small change assisting employers with remote workers. SB 657 allows that in any instance in which an employer is required to physically post information, an employer may also distribute that information to employees by email with the document or documents attached.

While this does not remove an employer’s obligation to physically display postings as required, the measure is intended to clarify the employer’s ability to communicate required information more effectively.

This statute 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.

A flurry of employment law-related bills are headed to Governor Newsom for consideration, however, no bills are being presented related to statewide supplemental paid sick leave. In March 2021, California resurrected and expanded statewide COVID-19 supplemental paid sick leave.  The legislation sunsets on September 30, 2021, and there is no legislation pending to extend it.

While the leave entitlement could be extended by the Governor by an Executive Order, there has been no indication from the Governor’s office that an order is planned.

Pursuant to the terms of the legislation, after September 30th, the requirement to provide supplemental paid sick leave will end.  However, if a covered employee is taking supplemental paid sick leave at that time, the employee can finish taking the amount of leave they are entitled to receive.

Some local supplemental paid sick leave requirements will remain in effect beyond September 30, 2021, such as the City of Los Angeles and the City of Long Beach. Employers should review local sick leave requirements to ensure compliance as the state legislation expires.

Jackson Lewis continues to track COVID-19 legislation affecting employers. If you have questions about supplemental paid sick leave requirements or related issues, contact a Jackson Lewis attorney to discuss.

On  September 23, 2021, California’s Governor signed Senate Bill 807 (SB 807), which makes procedural modifications to how the Department of Fair Employment and Housing (DFEH) enforces California’s civil rights laws. The changes include modifying when and how the DFEH can appeal adverse superior court decisions regarding the scope of the DFEH’s power to compel cooperation in investigations and tolling the time the DFEH has to file a civil action while dispute resolution is pending.

Of note to California employers, SB 807 also expands current record retention requirements.  Effective January 1, 2022, employers must now retain personnel records for applicants and employees under Government Code section 12946 for four years from the date the records were created, or the date the employment action was taken.  Additional retention requirements apply once a complaint has been filed.

In addition, SB 807 extends the period in which an individual can file a civil action for violations of certain statutes, by tolling that period while the DFEH investigates and/or takes action on a complaint.

SB 807 also extends to two years the period of time that the DFEH has to complete its investigation and issue a right-to-sue notice for employment discrimination complaints treated by the DFEH as a class or group complaint.

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 22, 2021, California’s Governor signed Assembly Bill 701 (AB 701) which regulates the use of quotas at warehouse distribution centers in California.  The new law applies to large employers who meet industry definitions for General Warehousing and Storage, Merchant Wholesalers (Durable and Non-Durable Goods), and Electronic Shopping and Mail-Order Houses.

AB 701 requires employers with large warehouse distributions centers to disclose quotas and pace-of-work standards to each employee upon hire or within 30 days of the law going into effect.  Employers are required to provide “a written description of each quota to which the employee is subject to, including the quantified number of tasks to be performed or materials to be produced or handled, within a defined period of time, and any potential adverse employment action that may result from failure to meet the quota.”

The new law also provides that employees are not required to meet quotas that prevent compliance with meal or rest periods, use of bathroom facilities, or occupational health and safety laws.

If a current or former employee believes that a quota has caused a violation of such laws, the employee may request, and the employer must provide a written description of each quota applicable to the employee and a copy of the most recent or last 90 days of the employee’s own personal work speed data.  A former employee is limited to one request.

There is a rebuttable presumption of unlawful retaliation if an employer discriminates, retaliates, or takes any adverse action against any employee within 90 days of the employee either: (1) initiating the first request in a calendar year for information about a quota or personal speed data; or (2) making a complaint related to a quota alleging a violation of the labor code.

Employees are authorized to pursue injunctive relief and to recover costs and reasonable attorney’s fees upon prevailing in that action.

The requirements of this legislation go 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.

For now, California employers are beholden to state and local COVID-19 requirements as well as Cal/OSHA’s infamous COVID-19 Emergency Temporary Standards (ETS). The ETS are set to expire on January 14, 2022. However, Cal/OSHA has recently released a draft of a semi-permanent standard for COVID-19.

The current proposal would create a COVID-19 standard that would be subject to renewal or expiration after two years. Here are the key differences between the proposed standard and the current ETS.

COVID-19 Included in IIPP

Instead of requiring a separate COVID-19 Prevention Program, employers would address COVID-19 through their Injury and Illness Prevention Program (IIPP). Under the proposed standard, employers would still be required to assess COVID-19 hazards in the workplace and train employees about appropriate safety practices.

Testing Requirements

The proposed standards would adopt a more stringent testing requirement that would mandate employers provide testing to all employees with a close contact with a positive person, regardless of vaccination status. Only employees who have recently recovered from COVID-19 and are asymptomatic would be exempt from such testing requirements.

Face Coverings

After the criticism that Cal/OSHA faced due to being out of step with state requirements for face coverings, the proposed standard would set California Department of Public Health (CDPH) guidance as the minimum standard. Unvaccinated employees would still need to wear face coverings indoors or in vehicles.

No More Exclusion Pay

The proposed semi-permanent standard would eliminate the requirement of exclusion pay for employees who are excluded from the worksite to quarantine. Excluded employees would still need to be provided information on applicable benefits such as sick leave.

Limitation on Respirator Requirement

The current ETS requires that employers provide respirators to employees who are not fully vaccinated upon request. In the proposed standard, respirators would only need to be provided to employees who had been identified by a health care professional as being at increased risk of severe illness.

Procedures for Outbreaks

During an outbreak in the workplace, all employees would be required to wear face coverings regardless of vaccination status. And employers would need to provide respirators during major outbreaks to all employees. The testing exemption for fully vaccinated employees during outbreaks would also be removed.

The Cal/OSHA Advisory Committee on COVID-19 is convening on September 23rd to discuss the proposed standard in more depth. The proposed standard would still have several administrative hoops to clear before it could replace the 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.