Under Cal/OSHA’s COVID-19 Emergency Temporary Standards (ETS), employers are mandated to have a written COVID-19 Prevention Program. In light of the recent revisions to the ETS, Cal/OSHA has released an updated model prevention program. The updated program includes directives for vaccinated and unvaccinated individuals such as face-covering requirements. The new model program also includes an appendix for documentation of employee’s COVID-19 vaccination status.

While the model prevention program is very detailed, employers will still need to conduct a workplace-specific evaluation to ensure they are appropriately addressing the hazards facing their workforce. Employers can find fact sheets and links to Cal/OSHA’s FAQs about the ETS on the COVID-19 Prevention Emergency Temporary Standards page.

If you have need assistance in updating your COVID-19 Prevention Program 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 simple answer is Cal/OSHA has not clarified if the 30-year retention rule is triggered by requirements of the COVID-19 Emergency Temporary Standards (ETS).

Pursuant to Cal/OSHA’s amended ETS employers are required to document the vaccination status of their employees if the employer intends to allow vaccinated employees to work without a face covering or to determine whether an employee needs to be excluded from the workplace due to a close contact with a COVID-19 case.

Under Cal/OSHA’s Frequently Asked Questions for the revisions to the ETS  three acceptable options are outlined for obtaining this vaccination information:

  • Employees provide proof of vaccination (vaccine card, image of vaccine card, or health care document showing vaccination status), and the employer maintains a copy.
  • Employees provide proof of vaccination. The employer maintains a record of the employees who presented proof, but not the vaccine record itself.
  • Employees self-attest to vaccination status and the employer maintains a record of who self-attests.

Under a separate Frequently Asked Questions page for the ETS generally, Cal/OSHA includes the following:

Q: How long are employers required to maintain documentation of employee vaccination status?

A: Vaccination records created by the employer under the ETS need to be maintained for the length of time necessary to establish compliance with the regulation, including during any Cal/OSHA investigation or appeal of a citation.

In order to encourage documentation using vaccination records, Cal/OSHA has determined that it would not effectuate the purposes of the Labor Code to subject such records to the thirty (30) year record retention requirements that apply to some medical records.

It is unclear if this response is intended to absolve employers from the typical 30-year medical record retention for all methods of vaccination status confirmation or only “employer created” documents such as when an employee’s self-attests to vaccination status.

Under 8 CCR 3204, subdivision (d), employers are mandated to maintain for at least the duration of an employee’s employment plus 30 years, medical records of employees, except for minor exceptions. Under the regulation, a medical record is defined as a “record concerning the health status of an employee which is made or maintained by a physician, nurse, or other health care personnel, or technician.”

Based on the general Cal/OSHA regulation, it would appear if an employer collects a copy of the vaccine card or other proof that was made or maintained by a physician, nurse, or other health care personnel, or technician, the employer would need to maintain those records for the duration of employment plus thirty years.

Hopefully, Cal/OSHA will further clarify their FAQs regarding the maintenance of vaccination records shortly. In the meantime, employers should be sure that if they are requesting documentation of vaccination status from employees it is being maintained in a confidential file.

If you have questions about compliance with the Cal/OSHA ETS or related workplace safety issues contact a Jackson Lewis attorney to discuss.

All the way back in 2018, California passed Senate Bill 826 requiring publicly-held corporations with principal executive offices in California to have a certain number of females on their board of directors. Similarly, in 2020, Assembly Bill 979 was passed which required publicly held corporations headquartered in California to diversify their board of directors with “underrepresented communities.”

Both laws have faced legal challenges including taxpayer organizations arguing that the State of California should not be permitted to use tax dollars to enforce the law and from shareholders of covered corporations.

Recently, the 9th Circuit revived a shareholder suit pertaining to Senate Bill 826. The suit was brought by a shareholder of a company covered by the statute. The shareholders of the company are responsible for selecting the corporation’s directors at their annual meeting. The shareholder alleged that the statute discriminates on the basis of sex in violation of the Equal Protection Clause of the 14th Amendment and “seeks to force shareholders to perpetuate sex-based discrimination.”

In December 2019, the company elected a female to fill a vacant board-member seat which meant the company was in compliance with the requirements of the statute. On that basis, the State moved to dismiss the shareholder’s complaint for lack of Article III standing. The district court granted the motion to dismiss reasoning that the shareholder had not suffered any injury in fact, because the penalties imposed under the statute were against non-compliant corporations, not shareholders.

The 9th Circuit reversed finding the shareholder had alleged injury in fact and thus had standing to challenge the statute.  Moreover, the appellate court opined in a footnote that the panel is leaving it to the district court on remand to determine whether SB 826 is constitutional.

The ruling does not change the current status of either Senate Bill 826 or Assembly Bill 979, as currently no preliminary injunction to bar enforcement is in place but the ruling could affect the future of both statutes as challenges against the lawfulness continues.

Jackson Lewis continues to track litigation and statutes that affect employers. If you have questions about compliance with diversity requirements or related issues contact a Jackson Lewis attorney to discuss.

While the past week brought many changes around California for COVID-19 requirements, both the state statute and several local supplemental paid sick leave ordinances persist.

The statewide COVID-19 Supplemental Paid Sick Leave (“SPSL”) law remains in effect until September 30, 2021.

As a reminder, under the state SPSL, employees are entitled to leave for the following reasons:

  • The employee is subject to a quarantine or isolation period related to COVID-19;
  • The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
  • The employee is attending an appointment to receive a vaccine for protection against COVID-19;
  • The employee is experiencing symptoms related to a COVID-19 vaccine that prevents the employee from being able to work or telework;
  • The employee is experiencing symptoms related to COVID-19 and seeking medical diagnosis;
  • The employee is caring for a family member who is subject to a quarantine or isolation order or has been advised to self-quarantine;
  • The employee is caring for a child whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19 on the premises.

Similarly, many local ordinances also remain in effect, and so employers should be aware of the local ordinances applicable to their business. There may be overlap under the local ordinances with the statewide obligations.

Locality Expires
Long Beach (City) Based upon City Council determination.
Los Angeles (City) Until 2 calendar weeks after the expiration of the COVID-19 local emergency period.

Los Angeles

(County – unincorporated areas only)

 Shall be in effect until two calendar weeks after the expiration of the COVID-19 local emergency, as ratified and declared by the Board of Supervisors.

Marin

(County – unincorporated areas only)

 September 30, 2021
Oakland (City) Shall expire after the expiration of Oakland’s Declaration of COVID-19 Emergency.
Sacramento (City) June 30, 2021
San Jose (City) June 30, 2021
Sacramento (City) September 30, 2021
Santa Rosa (City) September 30, 2021
Sonoma (County -unincorporated areas only) September 30, 2021

Marin and Sonoma County are the most recent localities to issue or expand their supplemental paid sick leave ordinances. Marin applies to employers with 25 or fewer employees. However, the reasons for which paid leave may be taken, and the amount of supplemental paid sick leave provided, mirror the statewide law. Sonoma County similarly extended the expiration date of its supplemental paid sick leave ordinance, but also provided a new bank of time retroactive to January 1, 2021.

If you have questions about COVID-19 sick leave requirements or related issues, contact a Jackson Lewis attorney to discuss.

The last few weeks have been quite tense for California employers as they watched the drama unfold with the state’s Department of Industrial Relations’ Division of Occupational Safety and Health (“Cal/OSHA”) over amendments to the standing COVID-19 Emergency Temporary Standards (“ETS”)

In case you missed it: a few weeks ago, Cal/OSHA delayed a vote on amendments to the ETS to have more time to consider new guidance from the Centers for Disease Control and Prevention (“CDC”) and the state’s health department. Then, Cal/OSHA considered new proposed amendments, which passed following two votes during an emergency meeting. These changes would have amended the ETS if approved by the Office of Administrative Law. However, the Standards Board withdrew the amendments and scheduled another emergency meeting. After proposing more revisions to the ETS to be considered on June 17th, Cal/OSHA also issued guidance in the form of a Frequently Asked Questions Page to explain proposed amendments.

Finally, on June 17th, the Standards Board passed an amended ETS and Governor Newsom issued an Executive Order to make the amended ETS effective as soon as filed with the Secretary of State.

The changes mainly attempt to bring the ETS in alignment with recent changes to California Department of Public Health (“CDPH”) Orders.

The following are the highlights of the changes to the ETS.

Face Coverings

All employees regardless of vaccination status do not have to wear masks outdoors. However, unvaccinated employees must be trained that face coverings are recommended outdoors for people who are not fully vaccinated when six feet of physical distance between people cannot be maintained.

Fully vaccinated employees do not have to wear a face-covering indoors unless (1) the employees’ work is subject to respiratory protection requirements under other health and safety standards, (2) there is an outbreak in the workplace, defined as three or more employees testing positive within a 14 day period or (3) the vaccinated employee is conducting COVID-19 screenings. Fully vaccinated employees also do not have to wear face coverings outdoors.

Employers must provide face coverings and ensure they are worn by unvaccinated employees when working indoors or in a vehicle with others.

Exceptions to Face Coverings for Unvaccinated Employees

  • When employees are outside.
  • When an employee is alone in a room or vehicle.
  • While eating or drinking, but only if employees are at least six feet apart and outside air has been maximized to the extent feasible. (Note that this is one area where physical distancing is still required. However, employers are still directed to evaluate the need for physical distancing and potential placement of barriers.)
  • Employees wearing a respirator under an employer’s Respiratory Protection Program

Employers are also required to provide face coverings to comply with applicable orders and the ETS, as well as to employees upon request, regardless of an employee’s vaccination status.

Physical Distancing

The amended ETS mostly eliminates physical distancing and barrier requirements, without consideration of employees’ vaccination status.

One clear exception is for locations where unvaccinated employees are eating and drinking, as noted above. Physical distancing is also still required in some cases, including:

  • If an employer assesses a workplace hazard and determines that physical distancing is necessary for the workplace.
  • If there is an outbreak, employers must evaluate whether physical distancing or barriers are needed to control transmission.
  • Physical distancing and barriers are mandated in the event of a major outbreak, defined as 20 or more employees testing positive.

Testing

Employers must continue to offer testing at no cost to employees under the following circumstances:

  • The employee is symptomatic and unvaccinated, regardless of whether there is a known exposure.
  • The employee is unvaccinated and has had a workplace exposure to COVID-19 (i.e. close contact with known or suspected COVID-19 infected person).
  • The employee is vaccinated, but has had a known workplace exposure, and has developed symptoms.
  • Employees who are unvaccinated in an outbreak (i.e., 3 or more employee positives within a 14-day period).
  • All employees in an exposed group during a major outbreak (i.e., 20 or more employee positives within a 30-day period).

Exclusion

Fully vaccinated employees and certain employees who have tested positive for COVID-19 previously, do not need to be excluded from the workplace following an exposure to COVID-19 unless they become symptomatic.

Documentation for Vaccine Status

To take advantage of the relaxed preventive measures, Cal/OSHA’s amendments require that the employer document employees’ vaccination status, especially for those not wearing a face covering.

Though the ETS does not specify a particular method for documenting status, the standard is performance-based and requires the documentation method to be effective. The FAQs for the amended ETS state acceptable options for documentation include:

  • Employees provide proof of vaccination, including a vaccine card or health care document showing vaccination status, and the employer maintains a copy.
  • Employees provide proof of vaccination and the employer maintains a record of the employees who presented proof but not the vaccine record itself.
  • Employees self-attest to vaccination status and the employer maintains a record of who self-attests.

Note that some of the options for documentation can have additional compliance obligations under Cal/OSHA’s Access to Medical Records Standard and related regulations. The alternative to collecting this information per Cal/OSHA is to require all employees to wear a face-covering instead of having a documentation process.

If an employee declines to state their vaccination status, the employer is required under the amended ETS to treat the employee as unvaccinated.

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.

On January 1, 2021, California’s statewide minimum wage increased to $14 per hour for employers with 26 or more employees and $13 per hour for employers with 25 or fewer employees.

Now that we are almost halfway into the year, all things need to get ready for summer, including minimum wage rates.  Many localities have their own minimum wage ordinances which are higher than the state minimum wage and are set to increase this summer.

The following local minimum wages will increase effective July 1:

Locality New Minimum Wage
Berkeley $16.32
Emeryville $17.93
City of Los Angeles $15.00
County of Los Angeles $15.00
Fremont $15.00
Malibu $15.00
Milpitas $15.65
Pasadena $15.00
City and County of San Francisco $16.32
Santa Monica $15.00

Beginning on July 1, 2021, the City of Los Angeles and the City of Long Beach also will increase their minimum wage rate for hotel workers to $17.64 for Los Angeles (for hotels with 150 or more rooms) and $15.69 for Long Beach.

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

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

In a significant victory for California employers, the U.S. Court of Appeals for the Ninth Circuit reversed a $102 million award against Walmart in a suit alleging that the retailer violated the California Labor Code’s wage statement and meal-break provisions. The decision is Magadia v. Wal-Mart Associates, Inc., May 28, 2021, No. 19-16184.

The Ninth Circuit’s opinion is an important clarification of the cognizable harm required to establish Article III standing under the Private Attorneys General Act (“PAGA”) and the Labor Code’s wage statement requirements.

The critical takeaways:

  • An employee does not have standing to bring PAGA claims in federal court for alleged Labor Code violations that the employee themselves did not suffer.
  • An employer may make lump-sum payments as a retroactive adjustment to employees’ overtime rate to factor in bonus payments without identifying a corresponding “hourly rate” for the payment on employees’ wage statements.

Performance bonuses

Walmart provides “MyShare” performance bonuses to certain employees at the end of each quarter. Because the bonus must be included in the regular rate of pay for overtime wages under California law, Walmart makes a retroactive adjustment to employees’ overtime pay by calculating the difference between employees’ overtime rate over the quarter and the overtime rate that would have been in effect if the MyShare bonus had already been factored in. The employer then reports both the bonus and the adjusted overtime pay as lump sums on the wage statements issued to employees at the end of each quarter.

The lawsuit and the $102 million award

In a California class action and PAGA action that was removed to federal court, the plaintiff alleged that Walmart violated Labor Code section 226(a)(9) by failing to identify the hourly rates and hours worked associated with the retroactive overtime payment on employees’ wage statements and violated section 226(a)(6) by failing to identify the start and end dates of these pay periods in its final pay statements.

The plaintiff also asserted that the employer violated Labor Code section 226.7 by failing to factor in the MyShare bonus into the employees’ “regular rate of compensation” when paying employees meal break premiums for missed or untimely meal breaks.

After a bench trial, the district court determined that the plaintiff did not suffer a meal-break violation. And, because the plaintiff could not show his claims were typical of class members who suffered meal-break violations, the court decertified the meal-break class. However, the district court allowed the plaintiff to seek PAGA penalties, based on the meal-break violations incurred by other employees. In addition, the court held that Walmart’s semi-monthly and final pay wage statements violated sections 226(a)(6) and 226(a)(9). The court awarded the plaintiff nearly $102 million: $48 million in statutory penalties and an additional $48 million in PAGA penalties for the section 226(a)(9) violation; $5.8 million in PAGA penalties for the final-wage-statement claim; and $70,000 in PAGA penalties for the meal-break claim.

The Ninth Circuit reversed the judgment and remanded the wage statement claims with instructions to enter judgment for Walmart. The Ninth Circuit also vacated the judgment and penalties against Walmart on the meal-break claim and remanded with instructions to remand the claim to state court.

Meal-break claims: no injury, no standing

The Ninth Circuit held that the plaintiff lacked Article III standing to bring a PAGA claim for meal period violations because he did not personally suffer a meal period injury. The appeals court rejected the plaintiff’s contention that he did not have to suffer an individual injury because PAGA is a qui tam statute (in which a private individual sues on behalf of the government to vindicate a public right). Despite numerous similarities, PAGA claims are not traditional qui tam actions, the court explained. PAGA claims involve the interests of nonparty individuals (not just the state and the plaintiff) who are entitled to a portion of the penalties and also are bound by the PAGA judgment. Also, in a PAGA action, the State of California fully assigns the claims to the employee who is deputized under the statute to bring the claims.  In contrast, in qui tam actions, the government is the real party in interest, and merely partially assigns the claim to a private individual acting in the state’s interest.

Wage statement claims: standing, but no violation

The Ninth Circuit concluded that the plaintiff did have standing to bring his wage-statement claims, finding that a violation of section 226(a) creates a cognizable (i.e., “concrete and particularized”) Article III injury.  In reaching this conclusion, the court undertook a two-part inquiry. The court first found that section 226(a) protects a concrete interest in receiving accurate information about wages in employee pay statements and that Walmart could violate a “concrete interest” if it did, in fact, fail to disclose statutorily required information on the wage statements The court wrote, “Even if Walmart pays its employees every penny owed, those employees suffer a real risk of harm if they cannot access the information required by § 226(a).”

Nonetheless, on the merits, the Ninth Circuit held Walmart’s wage statements and final pay statements provided all the information required under the statute. Rejecting the district court’s holding that the wage statements violated section 226(a) because they did not include the requisite “hourly rates” and “hours worked” associated with the overtime adjustment, the Ninth Circuit found there was no “hourly rate in effect” for the bonus-based overtime pay adjustment. Rather, “[i] is a non-discretionary, after-the-fact adjustment to compensation based on the overtime hours worked and the average of overtime rates over a quarter (or six [semi-monthly] pay periods).” Thus, Walmart’s pay statements satisfied the Labor Code requirements.

Nor did Walmart’s final pay statements run afoul of the statute. The plaintiff alleged that Walmart violated section 226 because it did not include “the dates of the period for which the employee is paid” on the plaintiff’s “Statement of Final Pay,” which he received upon being discharged mid-pay period.  However, under the plain language of the statute, Walmart had the option of furnishing a separate final pay wage statement with the required pay-period dates to terminated employees in the ordinary course of business at the end of the next semimonthly pay period.

What it means for employers

The Magadia decision is a welcome relief for California employers facing a barrage of claims alleging technical violations of the state’s wage statement laws.  In particular, although the Ninth Circuit found that “informational injury” may be cognizable for Article III standing in federal court, it clarified that employers, in rewarding incentive bonuses to employees, need not undertake rigorous computations to identify a fictional “hourly rate” when awarding after-the-fact overtime premiums based on those bonuses.

If you have questions about California wage and hour compliance or related issues, contact a Jackson Lewis attorney to discuss.

In an emergency meeting on June 9th, the Cal/OSHA Standards Board reversed itself and voted to withdraw the amended COVID-19 Emergency Temporary Standards (ETS) it had just approved on June 3rd.  As such, employers will remain governed by the ETS that was passed in November 2020.

The emergency meeting was held so that the Board could consider changes to California Department of Public Health (CDPH) guidance regarding face coverings that will go into effect June 15th.

The Board could consider new revisions as early as their regular meeting scheduled for June 17th. The Board also has the option to elect to revoke the ETS altogether. However, based on the Board’s discussion regarding preserving their right to pass further revisions by withdrawing the most recent amendment, a full revocation of the ETS seems unlikely.

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.

California law is not typically seen as amiable to compelling employees to arbitrate their claims. However, in Franklin v. Community Regional Medical Center, ___ F.3d___(9th Cir. 2021), the Ninth Circuit panel upheld a motion to compel arbitration by a non-signatory to an arbitration agreement based on California law.

Read the full article on Jackson Lewis Litigators at Work.

Before 2020, the City of Santa Monica was one of a handful of cities that had a right of recall ordinance. However, since the beginning of the pandemic, many local governments enacted right to recall ordinances to return displaced workers to their prior positions.  Recently, the state joined these local governments, passing SB 93 relating to the right of recall for the hospitality industry.

As more employers have obligations under such regulations, the California Court of Appeal has timely issued a published opinion regarding Santa Monica’s right of recall ordinance, which the Court of Appeal notes is similar to the state and local right of recall ordinances currently in effect.

In the case, Bruni v. The Edward Thomas Hospitality Corporation, the plaintiff was a restaurant server who was laid off after about four months working for the employer. He brought a claim under Santa Monica’s right of recall ordinance, which provided that laid-off employees who had been employed for six months or more had the right to be rehired under certain circumstances. The plaintiff had previously worked with the employer for 10 months but had voluntarily separated. The plaintiff argued that his prior 10 months of employment should count for purposes of the ordinance.

However, the Court of Appeal held that the purpose of the ordinance was “to protect employees who were involuntarily laid off due to economic circumstances—not to protect employees who quit for personal reasons.”  Based on the purpose of the ordinance, the Court of Appeal held that the plaintiff failed to state a cause of action under the recall ordinance. However, the Court of Appeal stated in its opinion it was not deciding the issue of whether discrete periods of employment may ever be aggregated to satisfy the length of service requirement. The Court was only concluding that employment that was ended by a voluntary resignation cannot be aggregated with a later period of employment that ended in a layoff to meet the period of employment requirement.

While not definitively applicable to the state or local ordinances, the Court of Appeal’s decision provides persuasive guidance of the calculation of employment periods for the purpose of right of recall requirements around the state.

If you have questions about right of recall requirements or related issues, contact a Jackson Lewis attorney to discuss.