Employers may understand the workplace safety concerns surrounding wildfires, but there are other employment issues that employers should consider in the event of a wildfire near the worksite.

The California Labor Commissioner’s Office has FAQs pertaining to important employment issues that employers should consider when their employees or worksite are impacted by wildfires.

Regular Rate of Compensation

A major consideration is handling compensation to employees impacted by wildfires.  If the wildfire causes a work stoppage at the worksite, employees may be entitled to compensation if they are required to wait on-premises or at the worksite for work to resume.  On-call, idle, or standby time must be fully compensated, even if an employee is not performing any work because they are still subject to the employer’s control.  As such, employees must continue to be paid their regular rate of compensation, including overtime pay, if applicable.  Similarly, if employees are told to go home and return later in the same day, they may be entitled to premium pay such as split shift premiums.

Standby Time

Similarly, employers who permit employees to leave the premises, but are subject to restrictions on their movement or activities may need to  pay employees for the time spent away from the premises, because such time can be considered compensable “standby” time.  As an example, employees may be considered on standby if they are required to stay within a two-mile radius from the worksite, within a 10-minute drive from the wildfire site, or be responsive to calls within a short amount of time.

Reporting Time Pay

Typically, California mandates reporting time pay, which requires employers to pay employees a certain amount for “reporting time,” even if an employee is sent home so long as the employee shows up to their regularly scheduled work.  However, an exception exists for certain interruptions. These include interruptions that are caused outside of the control of the employer, for example, due to a wildfire, or other instances of uncontrollable natural forces.  As a result, employers may not be required to compensate employees due to work stoppage caused by a wildfire.

Exempt Employees

An “exempt” employee may be entitled to recover wages for the full week if that employee works at any point in that week.  For example, an exempt worker who shows up for half a day on Monday may be compensated for the rest of the week from Tuesday to Friday, even if there is a work stoppage.

Alternative Workweek Schedule

Employers on bona fide alternative workweek (AWW) arrangements must consider how changing employees’ hours or days of work may affect their compensation, before rescheduling employees.  Employers may be required to pay AWW employees for work at time and a half.  Employers who send AWW workers home due to a wildfire and require that they return on a non-regularly scheduled workday may be required to pay one and a half times their regular salary for the first eight hours.  Further, any hours worked over eight would be paid at two times the employees’ regular rate of pay.  Employers should be wary of the costs associated with canceling or reassigning employee work schedules.

Paid Time Off

Moreover, employees who are eligible for paid vacation or paid time off can elect to use their time if work must cease due to wildfire and they are sent home.  However, employees may only use paid sick leave if it is for covered reasons such as for, care, or treatment of an existing health condition or preventive care.

If you have questions about handling of work stoppage and compensation issues arising from wildfires, contact a Jackson Lewis attorney to discuss.

After the announcement of President Biden’s COVID-19 Action Plan, employers across the country, including California started to consider how to implement vaccination and testing requirements, even ahead of clear guidance from the federal government.

California already has its own Emergency Temporary Standards (ETS) which were amended in June by Cal/OSHA. However, currently, the California ETS does not mandate vaccination and the Cal/OSHA Standards Board has indicated it does not plan to amend the ETS further until at least December.

California’s administrative agencies have issued some guidance regarding the handling of both testing and vaccination in the workplace.

Earlier in 2021, California’s Labor Commissioner issued an FAQ regarding COVID-19 Testing and Vaccination, which covers concerns related to regulations enforced by the Labor Commissioner.

Similarly, the Department of Fair Employment and Housing also updated its guidance regarding COVID-19, to include information pertaining to vaccination and related issues in March 2021.

As guidance about the federal requirements become clearer, employers should also review California-specific requirements related to vaccination and testing to ensure compliance with state and local requirements.

If you have questions on compliance with COVID-19 workplace requirements, reach out to a Jackson Lewis attorney to discuss.

While California’s Private Attorneys General Act (PAGA) is often compared to class actions, many of the rules and regulations governing class actions are not present. And applying considerations like manageability to PAGA claims has caused California trial courts much consternation.

However, recently the California Court of Appeal for the Second Appellate District has provided some guidance. It recently decided on the issue of whether the trial courts have inherent authority to ensure that PAGA claims will be manageable at trial and whether courts have the authority to strike such claims if they are not.

The underlying case dealt with whether certain employees were appropriately classified as exempt from overtime requirements. The employer-defendant argued at the trial level that its affirmative defense, that the employees were appropriately classified, would require individualized proof, and thus the claim could not fairly and efficiently be litigated as a representative action. The trial court invited the plaintiff to provide a trial plan to show the case was manageable but instead, the plaintiff argued the trial court lacked authority to require his claim to be manageable. The trial court thereafter granted the employer’s motion to strike the PAGA claim.

The California Court of Appeal held that courts possess the authority to strike PAGA claims that are not manageable. The Court of Appeal drew on established principles of the courts’ inherent authority to manage litigation, including ensuring the manageability of representative claims, and concluded that:

(1) courts have inherent authority to ensure that PAGA claims can be fairly and efficiently tried and, if necessary, may strike claims that cannot be rendered manageable;

(2) as a matter of due process, defendants are entitled to a fair opportunity to litigate available affirmative defenses, and a court’s manageability assessment should account for them; and,

(3) given the state of the record and the plaintiff’s lack of cooperation with the trial court’s manageability inquiry, the court did not abuse its discretion in striking his PAGA claim as unmanageable.

The Court of Appeal affirmed the trial court’s grant of the motion to strike.

If you have questions about PAGA litigation or related issues with representative claims in California, reach out to Jackson Lewis’ California Class and PAGA Action team with questions.

 

On August 31, 2021, Governor Newsom signed Senate Bill 26 (SB 26) which makes the provisions of the Fair Pay to Play Act (The Act) operative September 1, 2021, and makes the provisions applicable to the California Community Colleges.

The Act, which was passed in 2019, allows college athletes to secure endorsements and sponsorships without losing scholarship eligibility and will generally provide athletes control over the marketing of their names, images, and likenesses.

The Act was originally set to become effective on January 1, 2023. However, SB 26 was first introduced to expedite the effective date to January 1, 2022, or to coincide with the effective date of any specified NCAA bylaw changes as adopted by the NCAA Board of Governors, whichever occurred first. The bill was later amended when it became clear that NCAA bylaw changes would occur on September 1, 2021.

SB 26 is effective September 1, 2021 (instead of January 1, 2022) because the act was amended to be an “urgency statute” to ensure that California schools and athletes were not put at a disadvantage in light of other laws being passed in 2021 in other states.

If you have questions about changes made by SB 26 or related issues related to name, image, and likeness regulations, contact a Jackson Lewis attorney to discuss.

Historically, California has experienced the most destructive wildfires in the months of September and October.  As we head into those months, employers should make sure they are familiar with California’s wildfire smoke standard.  Harmful air quality from wildfire smoke can occur anywhere in the state on short notice, so it is vital that employers prepare early.

With some exceptions, the standard applies to workplaces where the air quality index is 151 (Unhealthy) or higher and where it’s reasonably anticipated that employees may be exposed to wildfire smoke.  In addition to applying to outdoor settings, the standard also applies to indoor locations where the air is not filtered or if doors and windows are kept open, such as warehouses, packing, manufacturing, and distribution facilities.

Under the wildfire smoke standard, employers must protect employees from smoke by:

  • Monitoring the local air quality index;
  • Ensure open communication with employees;
  • Train employees on the information contained in Appendix B to Section 5141.1;
  • Modifying the workplace, if possible, to reduce exposure to wildfire smoke; and
  • Providing proper respiratory protection, like N95 respirators, for voluntary use when work must be performed in a location with poor air quality.

Moreover, if the air quality index for particulate matter (PM) 2.5 exceeds 500 due to wildfire smoke, respirator use is mandatory. Employers must make sure employees are using respirators correctly in these situations.  If employers cannot move operations and do not have access to respiratory protection, then operations may need to be stopped until the air quality improves.

To assist employers, Cal/OSHA maintains a list of vendors who report available supplies of N95 disposable respirators, which is updated regularly.

If you have questions about wildfire workplace safety requirements 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.

In June, with much fanfare, California announced it was reopening and lifting many of the COVID-19 restrictions that had been in place through state executive and health department orders. However, as there have been surges of COVID-19 across the state, many state and local orders requiring COVID-19 controls have changed in response. Mask mandates and vaccination requirements for certain workers, in particular, have been on the rise. Employers should carefully review new state and local guidance as well as their procedures to account for the new developments.

Mask Requirements

California Department of Industrial Relations Division of Occupational Safety and Health, better known as Cal/OSHA, updated emergency temporary standard requirements in June. These changes included adjustments to face-covering requirements for fully vaccinated workers while indoors and outdoors to mirror the California Department of Public Health (“CDPH”) guidance in place at the time of California’s reopening. This meant fully vaccinated employees were not required to wear face coverings while indoors so long as their employer had verified their vaccination status. In making this change, however, Cal/OSHA’s emergency temporary standard continued to direct employers to follow directives and orders from the state and local health departments, as well as CDPH guidance on the use of face coverings. Because the emergency temporary standard continues to direct employers to follow CDPH guidance, the Standards Board has indicated they do not plan to revise current emergency temporary standards on COVID-19 until December. On August 25, 2021, Cal/OSHA also stated in a press release that it “recommends” employers and workers follow the updated guidance from CDPH.  It is important that employers review the different standards and follow the stricter standard that applies to their business.

On July 28th the CDPH revised its guidance regarding the use of face coverings to include recommending universal masking indoors statewide. Significantly, the CDPH also mandated masks for all individuals, regardless of vaccination status, on public transit, indoors in K-12 schools, childcare, emergency shelters, cooling centers, healthcare settings, state and local correctional facilities and detention centers, homeless shelters, long term care settings, and adult and senior care facilities as defined by the Order.

For unvaccinated individuals, CDPH stated masks were required in indoor public settings and businesses subject to certain exemptions.

The guidance was issued after changes in the Centers for Disease Control (“CDC”) guidance recommending masking for indoor settings in areas with substantial and high transmission of COVID-19.

Even before the CDPH revised its face-covering guidance, several counties issued masking mandates, and more continue to join. Currently, the following counties require face coverings indoors regardless of vaccination status:

·       Alameda

·       Contra Costa

·       Humboldt

·       Imperial

·       Los Angeles

·       Marin

·       Mendocino

·       Mono

·       Napa

·       Nevada

 

·       Orange

·       Sacramento

·       San Francisco

·       San Mateo

·       Santa Barbara

·       Santa Clara

·       Santa Cruz

·      Sierra 

·      Sonoma

·       Trinity

·       Ventura

·       Yolo

 

Vaccination Requirements

The State of California, through CDPH, has issued several orders implementing the state’s vaccination and workplace testing strategy for reducing COVID-19 case counts. Collectively, these orders require health care workers in certain facility settings to be vaccinated by September 30, 2021 or obtain an exemption from the vaccination requirement for religious reasons or a qualifying medical or health exception. If a worker covered by the orders is exempted, the workers must undergo testing at set frequencies depending on when they enter certain health care facilities and if those facilities are considered high risk. California has instituted similar strategies for workers in school settings.

Several counties have issued requirements that piggyback on the state mandates or place requirements for vaccine verification on particular industries.

If you need information on local or state orders register to review the Jackson Lewis’ COVID-19 Advisor. If you have questions on compliance with COVID-19 workplace requirements, reach out to a Jackson Lewis attorney to discuss.

As working new moms return to the workplace, employers need to remember pre-pandemic workplace requirements, such as lactation accommodations. At the start of 2020, California’s enhanced lactation accommodation law went into effect.

Under the law, every employer must provide a reasonable amount of break time to accommodate an employee expressing breast milk for the employee’s child each time the employee needs to express milk. The break shall, if possible, run concurrently with any break already provided to the employee. If the break does not occur at the time of other authorized rest time, the time does not need to be paid. This may mean employers need to provide an employee with more breaks and longer breaks to allow the employee time to express breast milk.

For breast milk expressing employees, employers must provide a room or other location, other than a bathroom, in close proximity to the employee’s work area, which is private and free from intrusion while the employee is expressing milk. The location must be safe, clean, and free of hazardous materials and have the following:

  • A surface for a breast pump and personal items;
  • A place to sit; and
  • Have access to electricity or alternative devices like extension cords.

Moreover, the employee must have access to a sink with running water and a refrigerator or other cooling device suitable for storing milk in close proximity to the employee’s workspace.

An employer that employs fewer than 50 employees may be exempt from the location requirements if it can demonstrate that providing a private room or other location would impose an undue hardship, including significant difficulty or expense.

Employers also must have a policy regarding lactation accommodation that includes how an employee can request an accommodation.

Since the law went into effect last year, the California Labor Commissioner’s Office has also published a Frequently Asked Question page, to assist employers with compliance.

Employers in San Francisco should note that the city and county of San Francisco has a separate Lactation in the Workplace Ordinance, that has its own requirements. The San Francisco Office of Labor Standards Enforcement has issued an FAQ for that ordinance.

If you have questions regarding lactation accommodation compliance or need assistance in developing a lactation accommodation policy contact a Jackson Lewis attorney to discuss.

The Supreme Court of California recently issued two opinions assessing the breadth of California’s prevailing wage law.

Before the court in Mendoza v. Fonseca McElroy Grinding Co., Inc. was a specific question about whether California Labor Code section 1772 helped establish the scope of coverage by providing that workers employed “in the execution” of a public work contract should be deemed to be employed on a public work.  In a welcome development for contractors, the court rejected a broad interpretation advanced by the California Department of Industrial Relations, instead holding that section 1772 was enacted to simply clarify that employees of non-public entities can be subject to prevailing wage obligations. When assessing what activity is actually subject to prevailing wages, the court clarified the focus should be on specifically identified activity, such as activity listed in Labor Code 1720. The court declined to definitively establish whether off-site activity including travel time can be subject to California prevailing wage obligations.

In Busker v. Wabtec Corporation, the Court addressed another narrow issue regarding the breadth of California prevailing wage law – i.e., whether such coverage can extend to “rolling stock” such as train cars and locomotives. Again, focusing on Legislative history and specific statutory language, the court noted the Labor Code had never been amended to broadly extend prevailing wage coverage to non-fixed contexts such as rolling stock. Although the court noted the concepts of “construction” and “installation” triggering prevailing wage coverage under Labor Code section 1720 could conceivably include activity outside real property, the historic context of California’s prevailing wage law did not support such a conclusion. Echoing its ruling in Mendoza, the court rejected an argument premised on Labor Code section 1772 that installation work on rolling stock was covered because such activity was necessary to execute the public works contract. According to the court, while the California Legislature has enlarged the concept of “construction” to include certain pre-and post-construction phases, the Labor Code has not been amended to extend coverage to work in non-fixed contexts outside of freestanding modular furniture.

The Mendoza and Busker decisions represent an important check on both administrative and lower court decisions which relied on the “in the execution” language within Labor Code 1772 to establish broad prevailing wage coverage standards. Moving forward, courts will need to specifically assess whether specifically identified coverage triggers within the Labor Code include off-site concepts such as travel and mobilization.

If you have questions about the application of the Supreme Court of California’s recent decisions or related issues pertaining to prevailing wage law, contact a Jackson Lewis attorney to discuss.

In April, the 9th Circuit panel held that the application of California Assembly Bill 5 (AB 5) to motor carriers is not preempted by the Federal Aviation Administration Authorization Act of 1994 (FAAAA). The panel found the district court abused its discretion by granting the preliminary injunction. The panel concluded that AB 5 is a generally applicable labor law that affects a motor carrier’s relationship with its workforce and does not bind, compel, or otherwise freeze into place the prices, routes, or services of motor carriers.

The California Trucking Association (CTA) recently filed a petition for writ of certiorari with the Supreme Court.  The petition requests the Supreme Court weigh in on whether the FAAAA preempts the application to motor carriers of a state worker-classification law that effectively precludes motor carriers from using independent owner-operators to provide trucking services.

CTA argues the question warrants review because the courts of appeal and state courts disagree about the preemption issue.  Moreover, CTA argues the FAAAA was created to avoid a patchwork of state service-determining laws, acting to ensure that trucking rates, routes, and services would reflect competitive market forces. Finally, CTA argued that the application of AB 5 to owner-operators will “up-end the trucking industry’s longstanding business model” and “will destroy the uniformity necessary for the free flow of interstate commerce and the operation of nationwide business.”

The injunction imposed against enforcement of AB 5 pertaining to motor carriers will remain in place pending the Supreme Court’s decision on CTA’s petition.

Jackson Lewis continues to track developments pertaining to independent contractors and worker classification issues.  If you have questions about the application of AB 5 or related issues, please contact a Jackson Lewis attorney to discuss.

On August 12, 2021, the San Francisco Department of Public Health (SDPH) issued a revised order mandating that the following businesses require both patrons, aged 12 and older, and staff to provide proof of full vaccination:

  • Operators or hosts of establishments or events where food or drink is served indoors, including but not limited to, dining establishments, bars, clubs, theaters, and entertainment venues.
  • Gyms, recreation facilities, yoga studios, dance studios, other fitness establishments, where patrons engage in cardiovascular, aerobic, strength training or other exercise involving elevated breathing.

Further, under the Order all businesses and governmental entities are urged to consider moving operations or activities outdoors, if feasible, and to the extent allowed by local law and permitting requirements.

Individuals who enter or work in a covered business on an intermittent or occasional basis for short periods of time (e.g. individuals who deliver goods or packages) are not required to provide proof of vaccination.

Fitness establishments and activities that are part of a K-12 school or operate as a program for children and youth are covered by a separate sector-specific directive (available at on the SFDPH webpage).

In addition, the new requirements for both patrons and staff are subject to any applicable requirements of federal, state, or local laws, requiring accommodations.

Acceptable proof of vaccination includes:

  • The CDC vaccination card (physical, digital, or picture of the card)
  • Documentation from a healthcare provider
  • A personal digital COVID-19 vaccine record issued by the State of California or by an approved private company.

Businesses must crosscheck proof of vaccination against each patron’s photo identification.

Written self-attestation of vaccination status is not an acceptable form of proof of vaccination under the Order.

Businesses covered by the new vaccination mandate must implement verification for patrons as soon as possible, but no later than August 20, 2021.

Businesses covered by the mandate are also required to use their “best efforts” to ascertain the vaccination status of all staff who routinely work onsite by August 20, 2021. Moreover, covered businesses must as soon as possible but no later than October 13, 2021, ensure that all staff who routinely work onsite provide proof that they are fully vaccinated before entering or working in any indoor portion of the facility.

Jackson Lewis attorneys are closely monitoring updates and changes to legal requirements and guidance and are available to help employers sift through the complexities involved with COVID-19 regulations and orders.

If you have questions regarding compliance with the San Francisco Department of Public Health Order or related workplace COVID-19 requirements, please reach out to the Jackson Lewis attorney with whom you regularly work or any member of our COVID-19 team.