Just as current and former employees are entitled to inspect their personnel file, Labor Code Section 226(c) entitles current and former employees to request copies of wage statements. Often these requests occur when an employee has filed a claim or intends to file a claim. As such, the employers must have compliant wage statements to respond to these requests.

This is what litigators would like employers to know about wage statements.

The Basics

According to the California labor code, an itemized wage statement must have the following:

  • Gross wages earned
  • Total hours worked (not required for salaried exempt employees)
  • The number of piece-rate units earned and any applicable piece rate if the employee is paid on a piece-rate basis
  • All deductions (all deductions made on written orders of the employee may be aggregated and shown as one item)
  • Net wages earned
  • The inclusive dates of the period for which the employee is paid
  • The name of the employee and the last four digits of his or her social security number or an employee identification number other than a social security number
  • The full and correct name and address of the legal entity that is the employer
  • All applicable hourly rates in effect during the pay period and the corresponding number of hours worked at each hourly rate by the employee

The California Labor Commissioner’s office has provided a sample itemized wage statement for non-exempt employees and employees paid a piece rate.

When and How to Provide Wage Statements

Under the Labor Code, employees are entitled to an itemized wage statement semimonthly or every time they are paid wages, whether by check, direct deposit, or otherwise.

The California Labor Commissioner has stated that employers may provide electronic wage statements so long as each employee retains the right to elect to receive a written paper stub or record and that those who are provided with electronic wage statements retain the ability to easily access the information and convert the electronic statements to hard copies at no expense to the employee. Electronic wage statements must incorporate proper safeguards to ensure the confidentiality of employee’s confidential information.

Maintaining Employee Wage Statements

Employers must maintain pay records for at least three years pursuant to Labor Code sections 226 and 1174. However, litigators would prefer employers maintain records for at least four years because of the potential for claimants to bring claims that extend the full lookback period for wage and hour claims in California.

Maintaining compliant wage statements may not prevent employees from asserting a legal claim but doing so will assist an employer’s attorney with the defense of such claims.

If you have questions about employee wage statements or related concerns pertaining to wage and hour issues contact a Jackson Lewis attorney to discuss.

Here we go again! On March 15th, 2021, the California Department of Justice (“Department”) announced approval of modifications to the California Consumer Privacy Act’s (CCPA) regulations, originally introduced in December of 2020.  The new regulations mainly modify provisions related to a consumer’s right to opt out of sale of their personal information, with the aim of “protecting consumers from unlawful business practices that may be deceptive or misleading”.  The changes to the regulations are effective immediately.

“California is at the cutting edge of online privacy protection, and this newest approval by OAL clears even more hurdles in empowering consumers to exercise their rights under the California Consumer Privacy Act,” said Attorney General Becerra in the press release announcing the latest modifications to the CCPA regulations. “These protections ensure that consumers will not be confused or misled when seeking to exercise their data privacy rights.”

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

All the way back in 2016, California passed legislation that employers who do not sponsor an employee-retirement plan must participate in a state-run retirement program. This program became known as CalSavers.

While there have been legal challenges to CalSavers, the program persists. The pilot phase of CalSavers launched in 2018 and the phase-in period started in 2020.  CalSavers provides an opportunity for employees to defer wages, through payroll deductions by the employer, to a state-run individual retirement savings account program. An employer is not required to participate in CalSavers if it sponsors or participates in a retirement plan such as a 401(k) plan or pension plan. In order to be exempt from CalSavers, an employer may sponsor a retirement plan for any of its employees; California employees need not be covered by the retirement plan in order for the employer to be exempt.

Last year, employers with over 100 employees received a small reprieve and had their deadline to adopt a retirement plan and file an exemption or enroll in CalSavers, extended to September 2020. However, to date, employers with 50 or more employees still have a deadline of June 30, 2021, and employers with 5 or more employees have a deadline of June 30, 2022.

Employers who fail to comply with the requirements of the California mandate may be fined by the California Franchise Tax Board. As such, it is important for employers with employees in California to either adopt a retirement plan and file an exemption or register with CalSavers in order to ensure they are in compliance by the applicable deadline.

If employers have questions about California’s retirement plan mandate or about employee benefits, contact a Jackson Lewis attorney to discuss.

With the recent expansion of the California Family Rights Act (CFRA), employers who previously were not covered under CFRA now find themselves having to navigate the murky waters of the law.  From the basics such as who exactly is eligible for CFRA leave to the more complicated issues dealing with how CFRA works for pregnant employees, employers without experience in these matters could find themselves stepping on a proverbial land mine.

Covered Employers

Effective January 1, 2021, private employers of 5 or more employees within the United States are covered by CFRA. CFRA also applies to the California state and local governments as employers.

Covered Reasons for Leave

Eligible employees may take up to 12 weeks of CFRA leave for the following reasons:

  • Care for their own serious health condition;
  • Care for certain family members’ serious health condition;
  • To bond with a new child (by birth, adoption, or foster placement);
  • For a qualifying exigency related to the covered active duty or call to covered active duty of an employee’s spouse, registered domestic partner, child, or parent in the Armed Forces.

Eligible Employees

To be eligible for CFRA employees must meet 2 requirements: (1) the employee must have worked for the covered employer for more than 12 months and (2) The employee must have worked at least 1,250 hours in the 12 months prior to their leave.

The requirement that the employer has at least 50 employees within 75 miles of the employee’s worksite was eliminated effective January 1, 2021.

If you have questions about CFRA or other issues related to California leave, contact a Jackson Lewis attorney to discuss.

California’s Department of Fair Employment and Housing (DFEH), the agency charged with administering California’s employment discrimination statute and regulations, has updated its COVID-19 guidance for employers. The updates cover many issues that employers had been struggling with during the pandemic, including:

  • COVID-19 Inquiries and Protective Equipment
  • Employees with COVID-19 Symptoms or Infection
  • Job-Protected Leave
  • Reasonable Accommodations for Employees with Disability/Vulnerable Populations
  • Vaccination

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

State legislatures continue to pass laws designed to enhance pay equity and transparency, with the laws of California and Colorado effective in 2021. The California law requires employee pay data reporting by race and gender, and the Colorado law requires robust pay and promotional transparency.

California

Under California’s pay data reporting law (SB 973), most employers with employees in California must file a report of employee pay data by March 31, 2021.

Please find the rest of this article on the Jackson Lewis publications page.

The California Legislature is well into its 2021 Legislative session and February 19 was the last day to introduce new bills. Below is a sampling of some wage and hour bills that employers should have on their radar.

Assembly Bill 1003 – Wage Theft as Grand Theft

AB 1003 would make an employer’s intentional theft of wages, in an aggregate amount greater than $950 punishable as grand theft. AB 1003 would prevent intentional theft of wages that is punished as grand theft from being punished under any other criminal provisions but would authorize wages, benefits, or other compensation to be recovered in a civil action by the employee or the Labor Commissioner.

Assembly Bill 436 – Inspection and copying of wage records

AB 436 would make the deadline to provide the itemized pay statements the same as personnel records to a current or former employee (e.g. thirty calendar days) if both are requested, providing employers additional time than currently permitted to provide wage records under the Labor Code.

Assembly Bill 1028 – Telework Flexibility Act

AB 1028 would allow more flexibility for workers who are teleworking. If passed, AB 1028 would permit remote employees to work longer work hours and not incur overtime, without going through an alternative workweek election. It would also allow employees working from home to opt-out of California’s meal and rest periods’ strict timing requirements.

Assembly Bill 230 – Flexible Work Schedules

Similar to AB 1028, AB 230 would permit nonexempt employees to request an employee-selected flexible work schedule providing a longer workday without incurring overtime similar to an alternative workweek.

The Legislature has also proposed several bills about independent contractors, seeking to exempt classes of workers from the ABC test, first codified in AB 5 in 2019. It is likely if further exemptions are passed, as in 2020, they will be in the form of a consolidated bill like AB 2257.

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Jackson Lewis tracks state and local legislation relevant to employers. If you have questions about these pending bills or other employment law legislation, contact a Jackson Lewis attorney to discuss.

 

Though employers may feel like California just wrapped up its legislative session for 2020, the 2021 legislative session is already in full swing. February 19 was the last day for the proposal of new bills. However, Assembly members and Senators have until September to revise and amend proposed bills before submitting them to the Governor.

It is hard to predict which bills will make their way to Governor Gavin Newsom’s desk in the Fall, however here are bills relating to leave that employers should be watching.

Assembly Bill 85 and Senate Bill 95 – COVID-19 Supplemental Paid Sick Leave

While Statewide supplemental paid sick leave that was passed last year for food sector and other workers expired on December 31, 2020, the legislature has bills pending to resurrect this leave.

These bills would extend the COVID-19 food sector supplemental paid sick leave for food sector workers as well as the COVID-19 supplemental paid sick leave for other covered workers, if those workers are unable to work or telework due to certain reasons related to COVID-19 and meet specified conditions.

Assembly Bill 95 – Bereavement Leave

This bill would require an employer with 25 or more employees to grant an employee up to 10 business days of unpaid bereavement leave upon the death of a spouse, child, parent, sibling, grandparent, grandchild, or registered domestic partner. AB 95 also would require an employer with fewer than 25 employees to grant up to 3 business days of unpaid bereavement leave.

Assembly Bill 995 – Paid Sick Day Accrual and Use

For employers that grant paid sick leave and avoid California state sick leave accrual and carryover requirements, this bill would increase the annual grant allotment from 3 days or 24 hours to 5 days or 40 hours.

Employers that accrue paid sick leave under state law would be required to increase the accrual cap, from 6 days or 48 hours to 10 days or 80 hours. In addition, the bill would raise the employer’s authorized limitation on the employee’s use of carryover sick leave from three days or 24 hours to 5 days or 40 hours.

Assembly Bill 1041 – Expansion of the Definition of Family Member

This bill seeks to expand the definition of “family member” for purposes of leave under the California Family Rights Act and the Healthy Workplaces, Healthy Families Act (paid sick leave) to include other individuals related by blood or whose “close association with the employee is equivalent to a family relationship.”

Assembly Bill 1179 – Employer-Provided Backup Childcare

This bill would require an employer to provide an employee with up to 60 hours of paid backup childcare benefits, to be accrued and used under certain conditions. “Backup childcare” is defined as childcare provided by a qualified backup childcare provider to the employee’s child when the employee’s regular childcare provider cannot be utilized.

This bill would apply to employers with 1,000 or more employees, the state, political subdivisions of the state, and municipalities, including charter cities.

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Jackson Lewis tracks state and local legislation relevant to employers. If you have questions about these pending bills or other employment law legislation, contact a Jackson Lewis attorney to discuss.

It has been three months since California approved the Division of Occupational Safety and Health’s (“Cal OSHA”) COVID-19 Emergency Temporary Standard (“ETS”). The rushed implementation of Cal OSHA’s ETS, which imposed new and confusing obligations on employers, left many scratching their heads and resulted in several legal challenges to the ETS. For example, some agricultural employers challenged the ETS on grounds that it was ambiguous, imposed overwhelming compliance obligations on employers, and did not consider costs or feasibility.  Other employers continued to raise concerns over requirements in the ETS in public forums, through written questions to Cal OSHA, and directly with their representatives.

Read the full article at Jackson Lewis OSHA Law Blog.

Despite the California Grocers Association lawsuits pending against four cities over hero pay ordinances, more cities and counties have passed or are considering premium pay ordinances for grocery store and similar workers. The laws all vary in both scope and applicability so affected employers with locations throughout California should be mindful of the distinctions. Of the laws passed, some are effective immediately, others are effective after 30 days and in South San Francisco it is retroactive.

Thus far the following localities have passed premium pay ordinances in response to the ongoing COVID-19 pandemic:

Location Covered Employers Amount
Berkeley

Grocery stores that employ 300 or more employees in the state of California

 

 $5.00
Coachella

Agricultural operations, grocery stores, restaurants, and retail pharmacy that employee 300 or more employees nationally and 5 employees per location in the city of Coachella

 

 $4.00
Irvine

Retail establishments including grocery stores, drug stores, or certain large retail stores that employ 20 or more employees at the location and who employ 500 or more employees nationally.

 

 $4.00
Long Beach

Grocery stores that employ 300 or more employees nationally and employ more than 15 employees per location in the City

 

 $4.00

County of Los Angeles

(applies to unincorporated areas only)

Grocery stores and employ 300 or more employees nationally and employ more than 10 employees per location.

 

 $5.00
Montebello

Grocery stores and drug stores that employee over 300 employees or more nationally and 15 employees per store within the City

 

 $4.00
Oakland

Grocery stores that employ 500 or more employees nationally.

 

 $5.00
San Jose

Grocery stores that employ 300 or more employees nationally.

 

 $3.00
San Leandro

Retail food establishments that employ 300 or more employees nationally.

 

 $5.00

County of Santa Clara

(applies to unincorporated areas only)

Grocery and drugstores that either (a) employs 300 or more employees nationally and 15 or more employees in the unincorporated areas of the county, or (b) is a franchise that is associated with a Franchisor that employees more than 300 employees nationally and operates at least 10 locations in California

 

 $5.00
South San Francisco

Large Grocery Store or Large Drugstore that employs 500 or more employees nationwide

 

$5.00*

 

*Notably this increase is retroactive
West Hollywood

Grocery stores that employ 300 or more employees nationally and 15 employees per location in the City.

 

 $5.00

 

While the ordinances proceed forward, so too do the lawsuits against some of the cities that were the early adopters. On February 25, 2021, the judge presiding over the lawsuit against the City of Long Beach denied the California Grocers Association’s (“CGA”) request for a preliminary injunction against the city’s ordinance. CGA has appealed the decision. If reversed on appeal, it would mean that covered employers would not be required to comply with the ordinance until a final decision was made in the case.

Jackson Lewis continues to monitor local, state, and federal legislation pertaining to COVID-19. If you have questions about premium pay ordinances or other employment concerns related to COVID-19, contact a Jackson Lewis attorney to discuss.