California currently has a patchwork of local COVID-19 supplemental paid sick leave ordinances which remain in effect in 2021. But what about employers that are not located in those localities with a supplemental paid sick leave ordinance? Or employees who have exhausted supplement paid sick leave allotments?

Before the pandemic, California had the Healthy Workplace Healthy Family Act of 2014 (the Act), which mandated most employers in the state provide paid sick leave to employees.  Under the Act, employers must provide for the accrual of one hour for every 30 hours worked by the employee and allow the use of at least 24 hours or provide a lump sum of 24 hours of paid sick leave at the beginning of a 12-month period.

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

Following in the footsteps of the City of Long Beach, the cities of Montebello and Oakland have passed premium pay ordinances mandating additional pay for certain grocery and drug store employees. Premium pay or “hazard pay” for grocery employees seems to be the new trend in COVID-19 regulations. This trend continues despite recent lawsuits filed in federal courts by the California Grocers Association, seeking to block the new ordinances in Long Beach, Oakland, and Montebello.

The city of Montebello passed its urgency ordinance on January 27, 2021. The ordinance applies to grocery and drug stores with at least 300 employees nationwide and more than 15 employees per store within the city of Montebello. The ordinance requires covered employers to pay employees working within the city an additional $4.00 per hour. The ordinance went into effect immediately and will sunset in 180 days unless extended by the City Council. The City will also vote on a non-urgency version of the ordinance, this was due to concerns about litigation over the ordinance. A hearing on a preliminary injunction against the Montebello ordinance is scheduled for February 19, 2021.

Oakland’s ordinance applies only to grocery stores that employ 500 or more employees nationwide. The ordinance requires covered employers to pay employees working within the city an additional $5.00 per hour. Oakland’s ordinance will remain in effect until the City returns to the minimal (yellow) risk level under the state of California’s Tier system. The California Grocers Association lawsuit against Oakland was filed on February 3, 2021, alleging violations of the federal and California Equal Protection Clauses and preemption by the National Labor Relations Act.

On February 2, 2021, the Los Angeles City Council also voted unanimously to move forward with a proposed emergency ordinance that would require grocery and pharmacy retailers with 300 or more employees nationally and 10 or more employees on-site to add $5.00 per hour for all hourly, non-managerial employees’ wages for 120 days. The vote requested the city attorney to prepare the ordinance and the chief legislative analyst to report on potential economic impacts of the ordinance and potential legal challenges. The city of San Jose and the county of Santa Clara are considering similar ordinances.

Though the federal court denied an ex parte application for a temporary restraining order against the Long Beach ordinance, a hearing for a preliminary injunction of the Long Beach ordinance will be heard on February 19, 2021.

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.

California SB 973 requires employers that (1) file EEO-1 reports and (2) employ more than 100 employees to submit data to the California Department of Fair Employment and Housing (DFEH) annually that shows pay by race and gender for their California employees. It was signed into law on September 30, 2020, and DFEH has been busy providing guidance to employers and preparing the pay data reporting portal.

Additional — perhaps final — guidance was released on February 1. DFEH posted FAQs addressing Professional Employer Organizations and Acquisitions, Mergers, and Spinoffs.

It also released a 68-page User Guide that discuss the mechanics of data submission and provided templates (both in Excel and CSV format) to assist employers in submitting their required pay data.

Read the full article at Jackson Lewis Pay Equity Advisor Blog.

In 2020, employers with employees in California were inundated with new compliance requirements brought on by the COVID-19 pandemic. It seemed that another local government or the state passed a COVID-19 supplemental paid sick leave requirement nearly every month.  These supplemental sick leave benefits applied to employees who were not covered by the federal Families First Coronavirus Response Act (FFCRA). Many of the ordinances were written to sunset with the FFCRA or on December 31, 2020.

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

COVID-19 cases continue to surge around Southern California, causing the region to remain under the restrictions imposed by the statewide Regional Stay at Home Order longer than previously predicted. In response, local governments are looking for ways to reward the grocery workers who have been deemed essential since the start of the pandemic.

The City of Long Beach is the first to pass a “Hero Pay” ordinance, which requires certain grocery stores to pay workers “premium pay,” or additional compensation that is separate from an employee’s base pay, bonuses, commissions, and tips. The ordinance went into effect immediately on January 22, 2021, and remains in effect for 120 days from enactment, unless extended by the city council.

Covered Businesses

This ordinance applies to “grocery stores,” which include businesses that devote seventy percent or more of their business to retailing a general range of food products (fresh or packaged). It applies to grocery stores with more than 300 grocery workers nationally and more than 15 employees per grocery store within the City of Long Beach.

Covered Employees

The ordinance only requires premium pay be provided to those grocery workers who perform work within the City of Long Beach. However, the ordinance excludes managers, supervisors, and confidential employees from the premium pay requirement.

Premium Pay

Covered businesses must provide grocery workers with an additional $4.00 per hour for each hour worked.

Additional Requirements

Covered businesses must also provide written notice of rights established by the ordinance. The notice must include the following information:

  1. The right to premium pay guaranteed by the ordinance;
  2. The right to be protected from retaliation for exercising in good faith the rights protected by the ordinance; and,
  3. The right to bring a civil action for a violation of the requirements of the ordinance.

The notice must be posted in a location of the store used by employees for breaks and in an “electronic format that is readily accessible to the grocery workers.”

Covered businesses must also retain records that document compliance with the ordinance for a period of two years.

The City and County of Los Angeles, as well as the City of Santa Monica, are currently considering similar ordinances.

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.

Joining other counties and cities in California, the City of Oakland voted to extend its Emergency Paid Sick Leave ordinance into 2021. The amended ordinance applies retroactively to December 31, 2020, and will remain in effect until the City’s Declaration of COVID-19 Emergency expires.

The amended ordinance applies to all employers that have employees working in the City of Oakland, with the exception of certain smaller employers that are exempt from the ordinance’s requirements.

No Additional Time

Like the original ordinance, the amended ordinance provides full-time employees with 80 hours of Emergency Paid Sick leave (part-time employees receive a pro-rata amount). However, the amended ordinance states that employers are only required to provide Emergency Paid Sick leave on a one-time basis.  In other words, if an employer already provided an employee with all of the Emergency Paid Sick leave available under the original ordinance, it does not have to provide that employee with additional leave under the amended ordinance. In addition, an employer may credit any Emergency Paid Sick Leave hours provided to an employee prior to January 1, 2021, to its obligation to provide leave under the amended ordinance.

Off-Set Available

Employers may credit paid sick leave previously provided to employees under the Families First Coronavirus Response Act (FFCRA) or the state-wide COVID-19 Supplemental Paid Sick Leave law against the obligation to provide leave under the amended ordinance.

Reasons for Leave

The amended ordinance does not change the reasons for which Emergency Paid Sick leave may be taken. Employers must provide leave to employees who are unable to work due to the following reasons:

  • The employee is subject to a federal, state, or local quarantine or isolation order 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 experiencing symptoms of COVID-19 and is seeking a medical diagnosis;
  • The employee is caring for an individual who is subject to an isolation or quarantine order, or has been advised to self-quarantine;
  • The employee is caring for their child because the child’s school or place of care is closed or unavailable due to COVID-19 precautions;
  • The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor; or
  • The employee is caring for a family member who has been diagnosed with COVID-19 or experiencing symptoms of COVID-19.

The ordinance also provides paid leave for employees who:

  • Are at least 65 years old;
  • Have a health condition such as heart disease, asthma, lung disease, diabetes, kidney disease, or a weakened immune system;
  • Have a condition identified by an Alameda County, California, or federal public health official as putting the public at heightened risk of serious illness or death if exposed to COVID-19, or
  • Have any condition certified by a healthcare professional as putting the employee at heightened risk of serious illness or death if exposed to COVID-19.

The County of Los Angeles will be considering its own extension on January 26, 2021, which will include an expansion to those employees previously covered by the FFCRA.

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

In November, California quietly approved the Division of Occupational Safety and Health’s (“Cal OSHA”) COVID-19 Emergency Temporary Standard (“ETS”). Almost immediately, Cal OSHA’s ETS caused significant confusion and challenges for employers, who were already struggling with countless federal, state, and local requirements pertaining to COVID-19. Cal OSHA’s ETS also appeared to create new and different notification obligations for COVID-19 cases than those already provided for under AB 685 and standing health officer orders, and imposed confusing obligations on employers related to COVID-19 testing, work exclusions, and reporting of COVID-19 cases.

In places, Cal OSHA’s ETS could also be viewed as requiring inconsistent response measures to those recommended under current guidance from the Centers for Disease Control and Prevention (“CDC”) and standing health officer orders. Moreover, the ETS require preventive measures without consideration for the feasibility of those measures for certain workplaces.

In response to numerous concerns raised by employers and business associations, Cal OSHA’s standards board held a public meeting on the ETS in mid-December. And in response to stakeholder concerns, Cal OSHA promised to provide additional guidance on the ETS in the form of updated Frequently Asked Questions (“FAQs”) on its website.

At the start of January, and more than a month after the ETS had gone into effect, Cal OSHA finally published its additional guidance on the ETS.

The FAQs cover a host of topics, including information on the ETS’s applicability, how Cal OSHA intends to enforce the ETS, key requirements, and guidance for how employers can comply. Cal OSHA also provided clarification on testing requirements, considerations for “multiple infections,” or outbreak conditions, and requirements for providing exclusion pay to employees. Although much of the FAQs are merely a restatement of the actual ETS, there are some clarifications in the FAQs that have a substantial impact on employers. The FAQs also at times appear to depart from the ETS and provide an altered compliance obligation.

Some highlights from the FAQs include the following:

  • Scope of Coverage: The ETS applies to all employers, employees, and all places of employment with three exceptions:
    • A workplace where there is only one employee who does not have contact with other people;
    • Employees who are working from home; and
    • Employees who are covered by Cal OSHA’s Aerosol Transmissible Diseases Standard and regulations.
  • Communication with Employees: Under the ETS employer must have effective communication with employees on (i) how to report COVID-19 symptoms, exposures, and hazards to the employer without fear of reprisal, (ii) COVID-19 hazards in the workplace, (iii) the employer’s COVID-19 related policies and procedures; (iv) testing resources, (v) how the employer will notify employees of potential COVID-19 exposures; (vi) the employer’s cleaning and disinfection protocols; and (vii) how employees can participate in identification and evaluation of COVID-19 hazards in the workplace. Employers must also provide training to employees on a wide range of COVID-19 related topics, including information on benefits that may be available to the employee and the proper use of face coverings.
  • Outbreaks and Exposed Workplaces: The FAQ somewhat clarifies the definitions of an outbreak, major outbreak, and “exposed workplace” for Cal OSHA purposes. For purposes of the ETS, “an outbreak” is three or more employees who are COVID-19 positive in 14 days, whereas “a major outbreak” is 20 or more employees testing positive in 30 days in an exposed workplace. An “exposed workplace” is, in turn, considered to be a work location, working area, or common area that is used or accessed by a COVID-19 case during their high-risk period or infectious period and can include bathrooms, walkways, hallways, aisles, break or eating areas, and waiting areas. However, the FAQs indicate that Cal OSHA does not expect employers to treat areas where masked employees momentarily pass through as part of the “exposed workplace.” Cal OSHA’s FAQs also do not address the fact that their interpretation of an outbreak or exposed workplace may be markedly different from the local health departments or how employers should address an outbreak condition when there are competing definitions or requirements under California laws (e.g., the ETS and health officer order).
  • Testing Requirements: In an attempt to clarify the testing obligation for employers, Cal OSHA’s FAQ states that when testing is required under the ETS, employers must only (i) inform employees on the need for testing and how they can obtain COVID-19 testing; (ii) offer testing to the affected employees at no cost; and (iii) ensure employees are compensated for the time it takes to get tested. Despite the plain language of the ETS conveying different obligations for testing in response to a COVID-19 case and outbreak conditions, Cal OSHA’s FAQ also states that there is no difference in meaning between the obligation to “offer” or “provide” testing in the ETS. Further, even though the ETS conveys that employees are to be immediately tested in some circumstances, employers are not required to mandate employee testing, exclude the employee from the workplace until testing is complete, or obtain a declination from an employee who refuses to be tested.

Despite Cal OSHA providing 69 FAQs and responses, employers are likely to continue to have questions as well as face compliance challenges. Cal OSHA has, for example, not addressed the permissibility of employers using COVID-19 testing resources that are approved through an alternate regulatory pathway than the Food and Drug Administration and Emergency Use Authorization pathway outlined in the ETS, even if these testing resources are more readily available or affordable.

Cal OSHA’s FAQs also do not address challenges posed by the exclusion pay provisions. This is especially significant given that some of the sick leave benefits Cal OSHA contemplates as being available for employers to meet exclusion pay provisions expired at the end of 2020 and have not been renewed. Moreover, Cal OSHA does not address the apparent conflict in the exclusion pay provisions and workers’ compensation compensability. The conflict arises especially with employees who become symptomatic as they may not be eligible for exclusion pay and may also not be eligible for workers’ compensation.

Cal OSHA’s FAQs has advised that additional resources for compliance are forthcoming and that resources, including sample training materials, will be posted and updated on Cal/OSHA’s COVID-19 webpage.

If you need assistance in complying with the ETS or other Cal OSHA safety regulations, please reach out to the Jackson Lewis attorney with whom you often work or any member of our Workplace Safety and Health Team.

The CCPA has reached the one-year mark. This is a good time for businesses to review the success of their compliance programs and recalibrate for the CCPA’s second year. Here are a few suggestions to kick off that review:

  1. Privacy Policies. The CCPA requires a business to update the information in its privacy policy or any California-specific description of consumers’ privacy rights at least once every twelve months. If a business has not already done so, now is a good time to review both online and offline data collection practices to ensure privacy policies accurately disclose, at a minimum, the categories of personal information (“PI”) it collected in the preceding 12 months, the categories of PI it sold in the preceding twelve months, and the categories of PI it disclosed for a business purpose in the last 12 months.

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

The Federal Motor Carrier Safety Administration (FMCSA), within the federal Department of Transportation, is responsible for regulating commercial motor carrier safety.  In 2018, the FMCSA determined that federal law preempts California’s meal and rest break rules for interstate motor carrier drivers who are subject to the FMCSA’s rest break regulations.

The FMCSA regulations apply to commercial motor carrier drivers who operate in interstate commerce and meet other specified criteria.

California’s meal and rest break laws generally require commercial truck drivers to take more rest breaks, at greater frequency, and with less flexibility, than the federal regulations.

California’s Labor Commissioner, charged with enforcement of California’s meal and rest break laws, along with other pro-labor organizations, petitioned the federal Ninth Circuit Court of Appeal for review of FMCSA’s preemption determination.

On January 15, 2021, the Ninth Circuit Panel, in the consolidated case of International Brotherhood of Teamsters v. Federal Motor Carrier Safety Administration, held that the FMCSA’s determination reflected a permissible interpretation of the Motor Carrier Safety Act of 1984, and denied the petitions for review.  The Ninth Circuit’s decision means that for now interstate motor carriers need not comply with California’s meal and rest break laws but must comply with the FMCSA’s rest break requirements.  Interstate motor carriers are now permitted to implement uniform rules for drivers regardless of whether the drivers operate within California.

The Ninth Circuit’s decision may not mean interstate motor carriers are forever exempted from California’s meal and rest break regulations.  Before 2018, the FMCSA held that preemption did not apply, and the new administration could reverse the FMCSA’s 2018 determination.

Jackson Lewis monitors judicial and administrative decisions affecting employers in California. If you have any questions about this decision or related issues, please contact a Jackson Lewis attorney for assistance.

In Vazquez v. Jan-Pro Franchising International (Vazquez), the California Supreme Court answered “Yes” to the Ninth Circuit’s question, “Does your independent contractor ABC test in Dynamex Operations West, Inc. v. Superior Court (Dynamex) apply retroactively?”

In 2018, the Dynamex Court concluded that under California wage orders, anyone who performs work for a business is presumed to be an employee entitled to the protections afforded by the wage orders.

The Dynamex Court also held that a hiring entity can avoid that presumption of employment and wage order application when it comes to independent contractors, but only if the hiring entity establishes:

(A) that the worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of such work and in fact;

(B) that the worker performs work that is outside the usual course of the hiring entity’s business; and

(C) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity.

This infamous “ABC Test” was codified into California statutory law by Assembly Bill 5 (AB 5).

Before the ABC Test, California courts and California hiring entities used a multifactor test outlined in S.G. Borello & Sons, Inc. v. Department of Industrial Relations, commonly known as the “Borello Test.” The Borello Test focused on the amount of control a business exercised over a worker by looking at numerous factors. The more control a business exercised over a worker (e.g. set hours, location of where work was to be performed), the less likely that the worker could be properly classified as an independent contractor.

Since the ABC Test is more stringent than the Borello Test, employers and industry groups argued they should not be held accountable under the ABC Test in misclassification lawsuits that predated the Dynamex opinion.

The Vazquez Court disagreed, holding that it “did not change a settled rule on which the parties below had relied” and that Dynamex addressed an issue of first impression. The Vazquez Court simply concluded that there was no reason to depart from the general rule that judicial decisions are given retroactive effect.

What does this mean for California employers? Any employers defending against independent contractor misclassification cases that predate the 2018 Dynamex decision should reevaluate those issues under the more demanding ABC Test rather than rely on the more favorable, but outdated Borello Test.  And for those lucky employers not facing misclassification litigation at the moment, the Vazquez decision justifies company worker classification audits looking back beyond 2018.

Jackson Lewis tracks California case law relevant to employers. If you have questions about this case or related issues with worker classification contact a Jackson Lewis attorney to discuss.