The California Privacy Protection Act (CPRA) amended the California Consumer Privacy Act (CCPA) and has an operative date of January 1, 2023. The CPRA introduces new compliance obligations including a requirement that businesses conduct risk assessments. While many U.S. companies currently conduct risk assessments for compliance with state “reasonable safeguards” statutes (e.g., Florida, Texas, Illinois, Massachusetts, New York) or the HIPAA Security Rule, the CPRA risk assessment has a different focus. This risk assessment requirement is similar to the EU General Data Protection’s (GDPR) data protection impact assessment (DPIA).

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

 

Despite the Governor’s recent announcement for a tentative reopening of the state by June, California’s legislature has been busy passing COVID-19-related laws. At the end of March, the Governor signed Senate Bill 95, which resurrected and expanded supplemental paid sick leave. And more recently, the Governor signed Senate Bill 93, which implemented a statewide right of reemployment for certain industries.

Over the last four months, numerous localities (including the City of Los Angeles, Los Angeles County, Costa Mesa, Irvine, and others) across California have issued or considered “hazard” or “hero” pay ordinances that mandate premium pay for grocery and drug store employees and similar industries. While several lawsuits have been filed seeking to strike down these local ordinances, the state is considering two statutes that would support them.

First, Assembly Bill 889, would require the owner of a grocery store as soon as possible, but not later than 60 days or 180 days before a planned closure of a grocery establishment, to provide written notice of the intended closure to the city and county in which the grocery store is located, the local workforce development board, and the State Department of Social Services, along with other requirements for store closures. While at first blush this ordinance seemingly has little to do with the hero pay ordinances, as support for the bill, the proposed statute explicitly cites to planned grocery closures allegedly done in response to implemented hero pay ordinances.

In addition to the grocery industry, the state legislature is also considering Assembly Bill 650, which would mandate hazard pay retention bonuses for employees in the health care industry. The bonuses would be in addition to all other compensation paid to eligible health care workers. The bill would also make it a violation for a covered employer to discharge, lay off, or reduce a covered health care worker’s compensation or hours to prevent that worker from receiving hazard pay retention bonuses.

Jackson Lewis will continue to track local and state laws pertaining to employers and COVID-19. If you have questions about hazard pay or related issues, contact a Jackson Lewis attorney to discuss.

In 2020, a California district court granted a preliminary injunction to prevent enforcement of Assembly Bill 5 (“AB 5”) against motor carriers operating within California. AB 5 codified the judge-made “ABC test” for classifying workers as either employees or independent contractors. The district court concluded, “there is little question that the State of California has encroached on Congress’ territory by eliminating motor carriers’ choice to use independent contractor drivers, a choice at the very heart of interstate trucking.”

Shortly after the district court’s decision, the State of California and the International Brotherhood of Teamsters appealed to the 9th Circuit.   On April 28, 2021, the 9th Circuit issued its opinion, reversing the district court.  The 9th Circuit panel held that the application of 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.

This decision comes on the tail of another 9th circuit decision that the Federal Motor Carrier Safety Administration (“FMCSA”) preempted California’s meal and rest break laws.

The 9th Circuit’s decision on AB 5 is likely to be appealed to the U.S. Supreme Court or a rehearing sought. The preliminary injunction preventing enforcement of AB 5 in the trucking industry will not be lifted immediately but enforcement could start as early as May. This means motor carriers must now determine how to proceed in California under AB 5, unless and until the U.S. Supreme Court grants review or a request for rehearing is granted.

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.

In November 2020, Cal OSHA passed the COVID-19 Emergency Temporary Standards (ETS). Currently, the Standards are set to expire on October 2, 2021.

As outlined in prior articles, the ETS require that employers:

  • Establish, implement, and maintain an effective written COVID-19 Prevention Program.
  • Implement COVID-19 preventative measures.
  • Report information to their local health department.
  • Retain records related to COVID-19 cases in the workplace in a confidential manner.
  • Exclude workers known to have COVID-19 or who have had exposure.
  • Identify and manage COVID-19 infections and outbreaks in the workplace.

Unfortunately, the ETS are already lagging behind federal and state guidance pertaining to COVID-19. In particular, the ETS do not take into consideration guidance from the CDC regarding fully vaccinated individuals.

At the Cal OSHA Standard Board meeting on April 15th, several public commenters admonished the Standard Board about the lack of guidance from Cal OSHA or in the ETS regarding vaccinated individuals. The Standard Board disclosed that revisions to the ETS, including revisions about vaccinated individuals are in progress. Though it would be difficult due to tight timelines, the Standard Board hoped to have revisions passed by June, when California is tentatively set to fully reopen.

Jackson Lewis will continue to track developments pertaining to Cal OSHA regulations and requirements. If you have questions about the ETS or related compliance issues contact a Jackson Lewis attorney to discuss.

The COVID-19 Supplemental Paid Sick Leave statute was signed into law a month ago and, despite a FAQ issued by the California Labor Commissioner, employers were faced with uncertainty as to whether their employee’s leave request qualified under the statute.  Fortunately, the Labor Commissioner has updated its FAQs to provide further clarity to employers.

Reasons for Leave

The first clarification pertains to leave for childcare purposes. The statute states that eligible employees may take supplemental paid sick leave if “caring for a child…whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19 on the premises.” This wording led to confusion for employers since individuals were claiming the language required supplemental sick leave pay if their school or childcare facility had been closed for a prolonged period of time and not due to a sudden COVID-19 closure due to an issue on the premises.

The Labor Commissioner has stated this language means a child’s school or place of care has been closed after concern that a person who had been present on the school or daycare premises on or after January 1, 2021, was exposed to, or had contracted, COVID-19.  This does not include caring for a child whose school or daycare was closed before January 1, 2021.  If the school or daycare was closed on or after January 1, 2021, it must have been due to a closure, or partial closure, making the care unavailable due to COVID-19 on the premises.

The next clarification is whether an employee is eligible for supplemental paid sick leave if someone the employee lives with is exposed, experiences symptoms, or is diagnosed with COVID-19. The Labor Commissioner states that an eligible employee may use supplemental paid sick leave if the employee is caring for a family member either because the family member has been recommended by a medical professional to stay home due to COVID-19 or the family member is subject to a COVID-19 related quarantine or isolation period.

Requests for Leave

The Labor Commissioner has clarified that an employer must provide supplemental paid sick leave to an eligible employee “immediately upon the oral or written request” of the eligible employee.

Relation to Other Laws

The Labor Commissioner specifies that the recently passed supplemental paid sick leave is different than both the federal Families First Coronavirus Response Act (FFCRA) and the 2020 California COVID-19 Supplemental Paid Sick Leave. The new law provides an additional bank of time for COVID-19 related reasons.

The Labor Commissioner also notes in the FAQs that federal law currently provides tax credits for employers with less than 500 employees who provide COVID-19 related paid sick leave voluntarily. The Labor Commissioner directs employers to the  Internal Revenue Service FAQs for more information on the federal tax credit.

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

As California moves toward a tentative reopening date of June 15, employers may be considering bulking up their workforce again. If hiring new employees, employers should consider the guidance issued by the California Commission on the Status of Women (“Commission”), regarding starting compensation.

The guidance from the Commission first sets forth the applicable California statutes that apply to compensation.

Under California labor Code section 432.3(e), employers are prohibited from:

  • Seeking salary history from applicants
  • Relying on salary history information to determine whether to offer employment or what salary to offer
  • Relying on prior salary to justify the disparity in compensation

The Commission guidance also includes suggested practices for setting starting salaries including:

  • Determining the company’s compensation philosophy. This includes determining what the company thinks about compensation, what the company values about employees, and what factors are important in recruiting new hires such as experience, training, relevant skills, etc.
  • Evaluating internal equity. The Commission explains this as considering what current employees are making that do substantially similar work as a new hire. Employers should consider performing a gender and race/ethnicity-based analysis of pay for current employees in substantially similar jobs.
  • Formulating questions to ask applicants to assess whether the company and the applicant’s expectations align, without asking about prior salary.
  • Setting salary ranges in advance of interviewing applicants.

It is important that employers document the factors they consider in setting each employee’s pay upon the time of hire. This is not only recommended to ensure that the decision process aligns with the company’s compensation philosophy but can serve as support should an employee bring a claim alleging there was a violation of the Equal Pay Act.

Jackson Lewis can assist employers with conducting a self-audit of their compensation structure or pay equity analysis, as well as defending when a claim is brought alleging violations of the Equal Pay Act. If you have questions about structuring starting compensation or pay equity issues, contact a Jackson Lewis attorney to discuss.

The Governor has signed Senate Bill 93, which would require that covered employers offer employees laid off due to the COVID-19 pandemic available positions based on a preference system. The new statute is targeted at the hospitality industry, which has started to reopen as the state moves toward full reopening.

The bill is a budget bill and therefore the statute becomes effective immediately.

Specifically, the ordinance applies to the following industries:

  • Hotels
  • Private clubs
  • Event Centers
  • Airport Hospitality Operations
  • Airport Service Providers
  • Building Services to office, retail, or other commercial buildings

The bill includes further qualifications as to the size of the enterprise for application of the statute.

Under the new statute, employees who were employed by the employer for 6 months or more in the 12 months preceding January 1, 2020, and whose most recent separation from active service was due to a reason related to the COVID-19 pandemic, must be offered positions they are qualified for first before hiring new employees. Laid-off employees are deemed qualified if they held the same or similar position at the time of lay-off.

Covered employers must give laid-off employees 5 business days to respond to offers of reemployment, along with other requirements.

The statute also includes certain record-keeping requirements, for covered employers to be able to contact laid-off employees when positions become available.

The bill will sunset on December 31, 2024.

Jackson Lewis will continue to track COVID-19 related statutes and ordinances around the state of California. If you have questions about the right of recall ordinance or related issues, contact a Jackson Lewis attorney to discuss.

As the state of California moves toward full reopening, employers in certain jurisdictions in California already have to contend with local right of reemployment or recall requirements. While last year Governor Newsom vetoed a statewide right of recall, the state legislature has approved a similar statute, Senate Bill 93.  If signed by the Governor, the bill would require that covered employers offer employees laid off due to the COVID-19 pandemic available positions based on a preference system.

Covered Employers

Under the proposed legislation, employers who operate hotels, private clubs, event centers, airport hospitality services, or building services to office, retail, or other commercial buildings would have to comply with the statewide right of recall.

Each of the industries covered is further defined based on the size of the enterprise and related qualifications.

Covered Employees

The bill applies to “laid-off employees” defined as an employee who was employed by the employer for 6 months or more in the 12 months preceding January 1, 2020, and whose most recent separation from active service was due to a reason related to the COVID-19 pandemic.

Requirement

Covered employers must offer laid-off employees all job positions that become available for which the employee is qualified. Laid-off employees will be deemed qualified if the employee held the same or similar position at the time of lay-off.

The laid-off employee must be given at least 5 business days to respond to the offer.

If more than one employee would be entitled to a position, the employer must offer the position to the employee with the greatest length of service based on the date of hire.

An employer that declines to recall a laid-off employee on the grounds of lack of qualifications must provide the laid-off employee written notice within 30 days.

Record-keeping

Covered employers will be required to retain the following records for at least three years measured from the date of layoff:

  • Employee’s full legal name
  • Employee’s job classification at time of separation
  • Employee’s date of hire
  • Employee’s last known residence address
  • Employee’s last known email
  • Employee’s last known telephone number
  • A copy of the notice of layoff

The statute is a budget bill and, therefore, if signed will go into effect immediately. Per the current terms, it will sunset on December 31, 2024.

While typically new bills are not sent to the governor until the end of the legislative session, bills may be approved and sent before the end of the session. This session, the governor has already signed a couple of bills related to COVID-19, including supplemental paid sick leave.

Jackson Lewis will continue to track COVID-19 related statutes and ordinances around the state of California. If you have questions about the pending right of recall ordinance or related issues, contact a Jackson Lewis attorney to discuss.

20 million Californians have already been vaccinated, with all individuals age 16 and up eligible for vaccination effective April 15th. The Department of Fair Employment and Housing recently released updated COVID-19 guidance, which included guidance on employer vaccination programs. The California Labor Commissioner followed suit and released guidance regarding COVID-19 Testing and Vaccination pertaining to California regulations governed by the Labor Commissioner.

According to the Labor Commissioner, if an employer requires an employee to obtain a COVID-19 test or vaccination, the employer must pay for the time it takes for the testing or vaccination, including the time, spent traveling if the testing/vaccination is off-site.  As “hours worked,” employers should remember that all time associated with employer-mandated testing and vaccinations must be considered for overtime purposes, and comply with California’s meal and rest period requirements.

The Labor Commissioner also indicated if an employee is mandated by an employer to be tested for COVID-19 or be vaccinated, any cost of the test or vaccination must be reimbursed by the employer as a business expense. If the test or vaccine is conducted off-site, the employee is also entitled to travel time and business mileage reimbursement for travel to and from the off-site location.

An employee may also use COVID-19 Supplemental Paid Sick Leave for a vaccination appointment not mandated by the employer. It is important to note that the employer cannot require the use of paid leave when testing and obtaining a vaccination is mandated by the employer since that would be considered “hours worked.”

Jackson Lewis continues to track COVID-19 legislation and guidance affecting employers. If you have questions about the COVID-19 obligations for employers or related issues, contact a Jackson Lewis attorney to discuss.

The new year brought several important changes to the California Family Rights Act (CFRA). One key change that employers should be aware of is the expansion of the scope of individuals who qualify as “family members” under the law.

The CFRA allows eligible employees to take up to twelve weeks of protected leave for reasons that include caring for a family member with a serious health condition.  Until this year, the only family members for whom an employee could take CFRA leave were a spouse, registered domestic partner, parent, and minor or dependent adult child.

Senate Bill 1383 expanded the definition of a family member so it now includes all of the following individuals:

  • Spouse
  • Registered domestic partner
  • Parent
  • Child, which includes an adult child and the child of registered domestic partner
  • Grandparent
  • Grandchild
  • Sibling

In addition to broadening the scope of the individuals for whom employees may take leave under the CFRA, the expansion of the “family member” definition adds an extra layer of complexity to leave management for those employers who are subject to both the CFRA and the federal Family Medical Leave Act (FMLA). The FMLA’s definition of a family member is much narrower than that of the CFRA and includes only a spouse, parent, and minor or dependent child. This difference between the two laws means that employers must determine whether the family member at issue meets the definition of both the FMLA and CFRA or only the CFRA, and designate accordingly. For example, if an employee took leave to care for a spouse, that leave would qualify under both the FMLA and CFRA. If an employee took leave to care for an individual who fell only within CFRA’s definition of a family member, such as a grandparent, that leave would qualify only under CFRA and should be designated as such.

Given the expansion of the CFRA’s definition of a family member and the differences in the definitions under state and federal law, employers should closely manage leave requests to ensure that leave is properly designated and tracked.  Employers should also update their CFRA policies to reflect all the 2021 changes to CFRA, including the expanded definition of a family member.

If you have questions about CFRA or other issues related to leaves of absence in California, please contact a Jackson Lewis attorney to discuss.