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.

As more counties move toward the Orange Tier on the state reopening guidance, businesses can reopen or operate under less restrictive requirements. This may mean employers need more employees than in the last several months. Though last year, the Governor vetoed a statewide right of recall requirement, several cities still have ordinances in place.

The following cities still have a right of recall ordinance related to COVID-19:

City Covered Employers
Long Beach

·  Commercial property employers that provide janitorial services (25 or more employees)

·  Hotel employers (25 or more employees)
 Los Angeles

·  Airport employers

·  Commercial property employers that employ 25 or more janitorial, maintenance, or security service workers

·  Event center employers

·  Hotel Employers
Oakland

·  Airport hospitality employers

·  Event center employers

·  Hotel employers

·  Restaurant employers (more than 500 employees)
Pasadena ·  Hotel employers
San Diego

·  Commercial property employers

·  Event center employers

·  Hotel employers
Santa Clara

·  Building service employers

·  Food service employers

·  Hotel employers

Most of the ordinances require covered employers to offer available positions to qualified employees who were previously laid off due to pandemic mandated closures. Typically, such offers are to be made to employees based on seniority and/or length of service with the Company. Each ordinance requires covered employers to provide employees with a certain period to accept or decline rehire before the employer offers the position to another former employee with less seniority or opens the position to new employees. Covered employers should review the rehire requirements in their locations to ensure they are complying with the various requirements specified.

San Francisco’s right of reemployment recently expired, but the Board of Supervisors is considering a replacement ordinance.

If you have questions on right of recall ordinances or other issues regarding rehire of employees, contact the authors or the Jackson Lewis attorney with whom you regularly work.

While many employers may be familiar with the requirement to provide harassment training, including training regarding the handling of internal complaints, what to do when a complaint is received may be less clear.

Fortunately, the Department of Fair Employment and Housing (DFEH) has a harassment prevention guide for California employers.

The DFEH’s guide provides steps for conducting a fair investigation, including:

  • Conducting a thorough interview with the complaining employee;
  • Giving the employee accused of inappropriate conduct an opportunity to explain their perspective;
  • Interviewing relevant witnesses and reviewing relevant documents; and
  • Taking other investigatory steps as may be necessary to determine facts, such as visiting work sites or reviewing video.

The person conducting the investigation should reach a reasonable and fair conclusion based on the information collected and reviewed during the investigation.

The DFEH encourages that the person selected to conduct the investigation be impartial. While an employer may engage Company employees to conduct workplace investigations of other employees, an employer may also hire an outside investigator if concerns of impartiality or bias arise. In California, external investigators must be licensed private investigators or attorneys acting in their capacity as an attorney.

Whether an outside investigator or an internal employee, the investigator must document witness interviews and any other steps taken to investigate, as well as their findings. Employers should retain all documentation received from an investigator.

Whether an attorney is conducting the investigation or an internal employee, the investigator is recommended to reach factual conclusions, not legal conclusions. However, the DFEH’s guide notes that an internal investigator may sometimes conclude whether behavior violated a Company policy. This is not the same as determining that a person violated the law.

Once the investigation is completed, California regulations require that the employer take appropriate remedial steps if misconduct has been found. Employers are required under California law to prevent and correct unlawful behavior. The DFEH states that, in order to meet this obligation, an employer should:

  • Stop behavior before it rises to the level of unlawful conduct;
  • Impose remedial action commensurate with the level of misconduct and that discourages or eliminates recurrence; and
  • Determine what the Company has done in the past in similar situations, to avoid claims of unfair remedial measures.

If you have questions about conducting internal workplace investigations or need to retain an attorney to assist with a workplace investigation, contact a Jackson Lewis attorney to assist.

As an employer in California, you probably know that the Fair Employment and Housing Act (“FEHA”) requires employers with five or more employees to provide reasonable accommodations for applicants and employees with a physical or mental disability. A reasonable accommodation allows an applicant to have an equal opportunity to be considered for the job and allows an employee to be able to perform the essential functions of the job.  A reasonable accommodation is not required if it is an undue hardship to the employer.

The critical, first step in providing a reasonable accommodation is to have a dialogue with an applicant or employee. This dialogue is often referred to as the “interactive process.” Here is what we, as litigators, want employers to know about the interactive process.

Employers must engage in a “timely, good faith” dialogue with an applicant or employee. First, employers should document when a request for reasonable accommodation is received, when the interactive process is initiated, and any discussions between an employer and applicant or employee about the requested accommodation.  If there is subsequent litigation over this issue, this documentation may be helpful evidence to prove that the employer “timely” engaged in the interactive process.

Second, it is important that employers document all potential reasonable accommodations identified and considered. Even if a suggested accommodation cannot be provided because it would result in an undue hardship, it is important to show that the employer evaluated the proposed accommodation as part of the interactive process.  Evidence of other potential accommodations and the effectiveness of those alternatives can be used to show that the employer acted in “good faith” when engaging in the interactive process.

After providing a reasonable accommodation to an applicant or employee, the employer should confirm that the accommodation is effective. For employees, this may mean periodic or ongoing checks to see if the accommodation is still effective. And employers should document these follow-up inquiries. If an accommodation is not meeting an employee’s needs, the employer and employee should re-open the interactive process dialogue to consider other potential accommodations.

Finally, employers should ensure they are handling accommodation issues as confidentially as possible. While it may be obvious that an employee has been provided certain accommodations, the underlying medical or disability issues, and the work-related limitations, should be kept confidential.

The California Department of Fair Employment and Housing has issued a model packet for documenting the process, including follow-up with an applicant or employee.

If you have questions about engaging in the interactive process with an applicant or employee or providing reasonable accommodations, please contact your regular attorney at Jackson Lewis or the authors of this article to discuss.

On the anniversary of California’s statewide shelter-in-place orders, Governor Newsom signed legislation bringing back the statewide COVID-19 Supplemental Paid Sick Leave.

The new statute requires employers to display a required poster issued by the California Labor Commissioner and which the Labor Commissioner issued on March 22, 2021. Like prior required posters, the notice includes covered leave reasons and the amount of time eligible employees are entitled. If employees do not frequent the workplace, employers may satisfy the notice requirement by disseminating via electronic means, including e-mail. The statute provides a 10-day grace period until March 29, 2021, for employers to comply but should disseminate or display the poster as soon as feasible.

Read the full article on Jackson Lewis Disability, Leave & Health Management Blog. 

In 2018, the California legislature passed Assembly Bill 2455 (“AB 2455”), which required the Department of Social Services to provide labor organizations registered home care aids’ contact information to assist with organizing efforts of the home care workforce.

Two industry groups, the Home Care Association of America and the California Association for Health Service at Home (“Associations”), whose members employ home care providers, filed suit in federal court to block the law.

This month, the federal district court heard dueling motions for summary judgment in the case. The Associations argued that the bill was preempted by the National Labor Relations Act (“NLRA”). In a lengthy order, the district court considered the two potential avenues for preemption under San Diego Building Trades Council v. Garmon (Garmon) and Machinists v. Gonzales (Machinists). For disclosure to be preempted under Garmon, the NLRA or its integrated scheme of regulation would have to govern when and how labor unions can collect contact information of potential members in all contexts. However, the district court found there was no broad regulatory structure that prevented contact information from being supplied outside the context of an election conducted by the NLRB. Further, the court found that laws like AB 2455, which promote open communication, do not intrude on the zone of free negotiation protected by Machinists preemption.

Based on the findings, the district court denied the Associations’ motion for summary judgment and granted the State’s motion, thereby declining the Associations’ requested injunction against AB 2455.

What does the outcome of this case mean for the home health care industry? After the legislation was passed, many foresaw an increase in unionization efforts in the home care industry. This seems even more likely in light of the COVID-19 pandemic effect on the industry. The Associations may appeal the district court’s decision and continue their attempts to block the legislation in the future.

Jackson Lewis will continue to track developments regarding AB 2455 and related legislation. If you have questions about AB 2455, or issues pertaining to labor and employee unionization, contact a Jackson Lewis attorney to discuss.

Governor Newsom has signed Senate Bill 95, which resurrects the statewide COVID-19 Supplemental Paid Sick Leave that expired at the end of 2020. The bill takes effect immediately but provides a 10-day grace period for employers to start providing sick leave. The new law also applies retroactively to January 1, 2021 and will remain in effect until September 30, 2021.

What employers are covered?

The new law applies to employers in the state of California with more than 25 employees.

Which employees are eligible?

Employees who are not able to work or telework for any of the reasons detailed in the legislation qualify for the paid leave. There is no length of service requirement for the leave entitlement provided under the new law.

When can employees take leave?

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.

How much leave are employees entitled to?

Full-time employees are entitled to 80 hours of COVID-19 supplemental paid sick leave. Full-time is defined as either an employee who is classified as full-time by the employer or who was scheduled to work, on average, 40 hours or more per week in the two weeks preceding the date on which leave is taken.

If an employee is not classified as full-time, the employee’s schedule and length of employment will determine the amount of their leave entitlement as follows:

  • An employee with a regular schedule is entitled to the total number of hours the employee is normally scheduled to work for the employer over two weeks.
  • An employee with a variable schedule is entitled to 14 times the average number of hours the employee worked each day for the employer in the six months preceding the leave.
  • An employee with a variable schedule who has worked for the employer for 14 days or less is entitled to the total number of hours the employee has worked for the employer.

The rate of pay for the leave for non-exempt employees shall be calculated by the highest of the following:

  • The employee’s regular rate of pay for the workweek in which the employee uses the leave.
  • A formula of dividing the covered employee’s total wages not including overtime by the employee’s total hours worked in the full pay period of the prior 90 days of employment
  • The state minimum wage
  • The local minimum wage to which the employee is entitled

For exempt employees, the leave will be paid at the rate that the employer calculates wages for other forms of paid leave time.  The amount paid for supplemental paid sick leave is capped at $511 per day and $5,110 in aggregate.

Due to the retroactive effect of the legislation, employers will need to consider retroactive payments for leave. Any retroactive payment of leave must be paid on or before the payday for the next full pay period after the oral or written request of the employee.

Employers who provided supplemental paid sick leave on or after January 1, 2021 (or April 1, 2021, if the employee qualifies as a home health care provider), under local COVID sick leave ordinances or a COVID specific employer policy may be able to count such hours towards satisfaction of the requirements under this new legislation.

Notice Requirement

Employers will need to provide employees with notice of this new law.  The new law states the Labor Commissioner’s office will release a model notice within 7 days of the passing of the bill.  Employers will also need to provide employees (other than home health care providers) with written notice of available leave balances.  For employees who work a variable schedule, this leave balance notice can be satisfied by performing an initial calculation of hours and indicating “(variable)” next to that calculation.

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