On September 17, 2020, Governor Gavin Newsom signed Assembly Bill 685 (“AB 685”) into law, and in doing so amended provisions of California’s Health and Safety and Labor Codes. AB 685 explicitly amended Labor Code section 6409.6 to grant California’s Division of Occupational Safety and Health (“DOSH” or “Cal OSHA”) authority to issue: (1) Orders Prohibiting Use (“OPU”) in certain circumstances where COVID-19 presents an imminent hazard, and (2) citations alleging serious violations of occupational health and safety requirements related to COVID-19 without giving employers 15-day pre-citation notice.  The law also mandates a written notification to all employees following known potential exposure to COVID-19 in the workplace, which Cal OSHA has authority to enforce, and notification to local and state public health departments of COVID-19 “outbreaks.”

As the California Department of Public Health (“CDPH”) had previously issued guidance to California employers and businesses in the form of a playbook, which defined an “outbreak”, and the state’s regulatory framework gives CDPH responsibility for management of communicable diseases, AB 685 left the definition of ”outbreak” up to CDPH.

On October 16, 2020, CDPH issued additional guidance on AB 685 with the following definitions:

  1. COVID-19 “outbreak”:
    • A COVID-19 outbreak is defined in a non-healthcare workplace as at least three COVID-19 cases among workers at the same worksite within a 14-day period.
      • Under AB 685, a COVID-19 case is someone who:
        • Has a positive viral test for COVID-19,
        • Is diagnosed with COVID-19 by a licensed health care provider,
        • Is ordered to isolate for COVID-19 by a public health official, OR
        • Dies due to COVID-19, as determined by a public health department.
  • Under AB 685 Section 4 (Labor Code Section 6409.6, subsection (a)(4(b)), if an employer or their representative is notified of the number of cases meeting the definition of a COVID-19 outbreak, they must notify the local public health agency in the jurisdiction where the worksite is located.
  • Non-healthcare employers must therefore report to the local public health agency when three or more workers with COVID-19 are identified within a 14-day period.
  • Health facilities, who are exempt from AB 685’s mandate to report outbreaks to local health departments, should follow CDPH reporting guidance for healthcare facilities.
  1. Infectious period:
    • For an individual who develops COVID-19 symptoms, the infectious period for COVID-19 begins 2 days before the individual first develop symptoms. The infectious period ends when the following criteria are met: 10 days have passed since symptoms first appeared, and at least 24 hours have passed with no fever (without the use of fever-reducing medications), and other symptoms have improved.
    • For an individual who tests positive but never develops symptoms, the infectious period for COVID-19 begins 2 days before the specimen for their first positive COVID-19 test was collected. The infectious period ends 10 days after the specimen for their first positive COVID-19 test was collected.
    • Under AB 685 Section 4 (Labor Code Section 6409.6, subsection 1), employers must provide notice to all employees who were present at the same worksite as someone with COVID-19 during their infectious period.
  2. Laboratory-confirmed case of COVID-19:
    • A laboratory-confirmed case of COVID-19 is defined as a positive result on any viral test for COVID-19.

CDPH’s guidance goes on to convey that healthcare facilities, who are exempt from AB 685’s mandate to report outbreaks to local health departments, should follow CDPH reporting guidance for healthcare facilities.

In addition to the Definitions, the CDPH also published a memorandum on “Employer Questions about AB 685, California’s New COVID-19 Law.”  The questions provide some general insight for employers on AB 685’s employee notification requirements as well as the reporting requirements to local health departments.

The guidance states employers must report all COVID-19 outbreaks to their local health department.  Once the threshold for an outbreak is met, meaning three or more positive cases have occurred within a 14-day period, employers have 48 hours to report the cases to the local health department having jurisdiction over the worksite location.

Following an outbreak notification, employers also must continue to notify the local health department of any new COVID-19 cases identified among workers at the worksite and cooperate with the health department’s investigation.

Initial reports to Local Health Departments should generally include:

  1. Information about the worksite – the name of company/institution, business address, and North American Industry Classification System (“NAICS”) industry code.
  2. Names and occupations of workers with COVID-19.
  3. Additional information requested by the local health department as part of their investigation.

Notification and reporting requirements under AB 685 go into effect on January 1, 2021, and will last until January 1, 2023, and may be further extended. Until the outbreak notification requirements under AB 685 go into effect, California employers should still be aware that they may have notification obligations under standing local health department orders.

If you have questions or need assistance with COVID-19 Workplace Compliance, please reach out to the Jackson Lewis attorney with whom you regularly work or any member of our COVID-19 team.

While some of the 2020 election is still undecided, California voters were fairly definitive in their support of Proposition 22, which will now allow app-based rideshare and delivery companies to hire drivers as independent contractors if various conditions are met.

A key part of Prop 22 provides workers with minimum compensation levels, health insurance subsidies to qualifying drivers, medical costs for on-the-job injuries and prohibits drivers from working more than 12 hours in a 24-hour period for a single company. It also requires companies to develop sexual harassment policies, conduct criminal background checks, and require safety training for drivers.

Since the advent of ride-sharing apps, the gig economy and the State of California have grappled over how workers who provide rideshare and delivery services should be classified. This disagreement started soon after these services became popular but came to a head with the passage of Assembly Bill 5 (“AB 5”) in 2019. Effective January 1, 2020, AB 5 adopted the stringent “ABC Test” for determining whether individuals should be classified as independent contractors or employees. AB 5 included a number of narrow exemptions, none of which were applicable to these drivers. This year, Governor Newsom signed Assembly Bill 2257 (AB 2257), which recasts, clarifies, and expands exemptions to AB 5. However, AB 2257, like AB 5, did not include any exemption applicable to ride-sharing companies.

With the passage of Proposition 22, app-based workers may be classified as independent contractors while also being provided benefits which typically would evidence an employee/employer relationship.

While the law is limited to app-based rideshare and delivery companies, the passage of Proposition 22 may allow for additional companies to pursue similar models. Or, potentially, other industries will seek to take their arguments for independent contractor classification to the voters. Proposition 22’s passage will also impact similar battles going on with rideshare and delivery companies in other states as well as states that planned to adopt legislation to follow California’s lead on the classification of drivers.

The legislature can only amend the new law if the changes are consistent with the Proposition’s purpose and if seven-eighths of lawmakers favor the amendment.

Jackson Lewis will continue to monitor worker classification legislation and regulations. If you have questions about worker classification, contact a Jackson Lewis attorney to discuss.

It goes without saying that November 3rd 2020 was an important day for the future of the nation, but it was also a significant day for the future of California privacy law.  On Tuesday, a strong majority of California voters supported Proposition 24, a ballot measure which aims to expand and enhance the California Consumer Privacy Act (“CCPA”).  The CCPA took effect in January, and companies are still grappling with its compliance. Companies have overhauled their privacy programs and policies and designed new systems to comply with the CCPA, but now it looks like they will be back to the drawing board.

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

California employers have been inundated with new legislation this year and many employers may have forgotten Senate Bill 1123 (SB 1123), that was passed in 2018. SB 1123 expanded the Paid Family Leave program to include time off for employees to attend to a “qualifying exigency” related to an individual’s spouse, registered domestic partner, parent, or child who is an active duty member of the United States Armed Forces. Although SB 1123 was passed in 2018, the changes do not go into effect until January 2021.

Assembly Bill 2399, passed this year, also expands the definitions of Paid Family Leave under Sections 3302 and 3307 of the Unemployment Insurance Code to include coverage for active military members and their families. AB 2399 also will go into effect in January 2021.

AB 2399 complements recent amendments to the California Family Rights Act (“CFRA”). The new reasons for using leave under the CFRA include time off to care for a grandparent, grandchild, or sibling with a serious health condition, or to take time off because of a qualifying exigency related to the employee’s call to active duty or the call to activity duty for certain family members in the Armed Forces. Under the prior CFRA statute, leave for purposes of caring for a family member was available only if the family member was the employee’s child, parent, spouse, or domestic partner, and CFRA leave was not available for qualifying exigencies related to military service.

If you have questions about new or old changes to California’s Paid Family Leave or other legislative change, contact a Jackson Lewis attorney to discuss.

The California 2020 legislative session has closed, and employers should be preparing for 2021 by updating policies and procedures. Employers should ensure that the minimum wage for non-exempt employees’ wages will be appropriately increased for 2021. Since 2017, California has been working its way up to an eventual $15 minimum wage. Industry groups rallied for “pausing” 2021’s increase, but to date, there is no indication this will happen.

On January 1, 2021, the state minimum wage will increase to $14.00 for employers with 26 employees or more, and to $13.00 for employers with 25 employees or less, unless the employees perform work in one of the many cities that have their own local minimum wage ordinance.   Employers should review non-exempt employee wages and make appropriate adjustments to ensure compliance for 2021.

While many employers are familiar with the need to increase non-exempt employees’ wages as state minimum wage increases on January 1st, employers might overlook the need to also increase some of their exempt employees’ salaries to meet the salary basis requirement of California law.

Exempt employee’s salaries must meet a certain threshold for the employees to be exempt under the executive, administrative, and professional exemptions. In California, exempt employees must receive a salary of at least twice the state minimum wage for a 40-hour workweek, in addition to meeting the general duties and other requirements. For 2021, this means exempt employees must receive a minimum annual salary of $58,240 for employers with more than 26 employees, and $54,080 for employers with 25 employees or less.  The base salary must be fixed and recur each pay period without variance due to hours, quantity, or quality of work performed.

For certain exempt positions, the Department of Industrial Relations (“Department”) annually sets the minimum salary requirement by following a formula set by the California Labor Code. This month the Department released the salary requirements for Computer Software Employees, Physicians, and Surgeons.

Computer software employees in 2021 may be exempt from overtime if their hourly rate is not less than $47.48, the minimum monthly salary requirement is not less than $8,242.32, and the annual salary requirement is $98,907.70.

If you have questions about employee pay, exemptions from overtime, or related wage and hour issues, contact a Jackson Lewis attorney to discuss.

On November 3, 2020, while the rest of the country is focused on the 2020 election, the California Supreme Court will hear oral arguments in Vazquez v. Jan-Pro Franchising Int’l, Inc. to address an unanswered question stemming from the Court’s 2018 decision in Dynamex Operations West, Inc. v. Superior Court 4 Cal. 5th 905 (2018) – does the Dynamex decision apply retroactively?

In Dynamex, the California Supreme Court adopted the “ABC Test” for determining whether an individual is an employee or independent contractor under the state Industrial Welfare Commission Wage Orders, drastically changing the standards in California for the classification of workers as independent contractors. The court declined, however, to address whether the decision would apply retroactively to independent contractor classification decisions made prior to the case being decided. It appears that the Court is now ready to answer that question.

After Dynamex, the California legislature adopted and expanded the Court’s holding in Assembly Bill 5 (“AB 5”). While AB 5 specifically states that certain aspects of the law apply retroactively, the decision in Vasquez could affect the retroactive application of AB 5 as well.

Jackson Lewis will continue to monitor this and related case law pertaining to independent contractors. If you have questions about worker classification contact a Jackson Lewis attorney to discuss.

California voters will decide on several important propositions in the upcoming November election, including three employment law issues that could have far-ranging implications for California employers and businesses.

Read the full article on Jackson Lewis Publications Page.

As California employers recover from the whirlwind of the 2020 Legislative Session, one bright spot is the Governor’s veto of Assembly Bill 3216, which would have established statewide recall rights and right of retention for laid-off employees. The Governor stated he had a concern of creating a “patchwork of requirements in different counties.” While some employers felt relief over the veto, many employers doing business in cities that already issued right of recall ordinances similar to AB 3216, continue to face a patchwork of requirements for compliance.

Four major cities in California; Los Angeles, Oakland, San Francisco, and San Diego; have passed their own right of recall and retention ordinances each with its own coverage and requirements.

City of Los Angeles

The City of Los Angeles’ right of recall and retention ordinance applies only to the following:

  • Airport employers
  • Commercial property employers
  • Event center employers
  • Hotel employers

The Los Angeles ordinance requires a covered employer to offer positions that become available on or after June 14, 2020, to qualified employees who were laid off on or after March 4, 2020. If more than one laid-off employee is entitled to preference for a position, the employer must offer the position to the laid-off employee with the greatest length of service in the position and then to the laid-off employee with the greatest length of service with the employer at the employment site.

City of Oakland

Similar to Los Angeles, Oakland’s ordinance is limited to industries related to the hospitality industry including:

  • Airport hospitality providers
  • Event centers
  • Hotels
  • Restaurants

Under the Oakland ordinance, a covered employer must offer eligible laid-off employees, in writing, any job positions that become available after the effective date of the Ordinance that the employee is qualified for with the employer. The employer may provide notice either by registered mail to the employee’s last known physical address, and by email or text to the extent, the employer has that information.

If an employer declines to recall a laid-off employee on the grounds of lack of qualifications and instead hires someone other than a laid-off employee, the employer must provide the laid-off employee a written notice advising of the non-selection within 30 days of the date of hire. The employer must document the reason for not hiring the laid-off employee and maintain the written record for three years.

City of San Francisco

San Francisco passed an ordinance that was broadly applicable to all employers operating within the City of San Francisco that employ 100 or more employees and lays off 10 or more employees working in San Francisco within a 30-day period.

Under the ordinance, an employer shall provide written notice to employees of covered layoffs and an employee’s rights under the ordinance. Employers who conducted covered layoffs on or after February 25, 2020, prior to the effective date of the ordinance, had 30 days from July 3rd to provide notice to employees of their rights under the new ordinance.

The notice must include a notice of the layoff and its effective date, a summary of the new ordinance’s right to reemployment, and contact information for the San Francisco Office of Economic and Workforce Development.

The San Francisco ordinance has been extended and will expire in November 2020, unless the City Council votes to extend again.

City of San Diego

Like Los Angeles and Oakland, San Diego’s ordinance is limited to the hospitality industry including

  • Commercial property employers
  • Event center employers
  • Hotel employers

The Recall Ordinance requires a covered employer to offer positions that become available on or after September 8, 2020, to qualified employees who were laid off on or after March 4, 2020. If more than one laid-off employee is entitled to preference for a position, the employer must offer the position to the laid-off employee in order of preference similar to that outlined in the Los Angeles’ Ordinance.

San Diego’s ordinance is currently scheduled to expire in March 2021, unless extended.

If you have questions or need assistance in complying with a local right of recall ordinance, contact a Jackson Lewis attorney to discuss.

The California Department of Fair Employment and Housing (“DFEH”) recently released  Frequently Asked Questions  (“FAQ”) for California’s Fair Chance Act. The Fair Chance Act, commonly referred to as California’s “ban the box” law, imposes restrictions on when and how employers may inquire about and consider an applicant’s criminal history, including prohibiting employers with five or more employees from asking about an applicant’s criminal history until after a conditional offer of employment has been made. The FAQ provides guidance on the Fair Chance Act and includes questions addressing how the law works, which employers are subject to the law, and the requirements that employers must follow in order to inquire about an applicant’s criminal history and make employment decisions based on that information.

In another development concerning the Fair Chance Act, California’s Fair Employment and Housing Council have updated regulations governing criminal background checks. The amended regulations, which were effective on October 1, 2020, incorporate the requirements of the Fair Chance Act into existing regulations addressing the consideration of criminal history in employment decisions. The new regulations expand the definition of “applicant” to include individuals who are conditionally offered employment but begin working while an employer undertakes a post-offer consideration of the individual’s criminal history; the regulations explicitly state that “[a]n employer cannot evade the requirements” of the Fair Chance Act or the regulations by treating an individual as having lost their status as an “applicant” by allowing them to begin working before the employer has completed its post-offer review of the applicant’s criminal history. Other changes to the regulations include: expanding the scope of the Fair Chance Act by requiring that labor contractors and union hiring halls comply with the regulations when selecting workers for inclusion in pool or availability lists; requiring client employers to comply with the regulations when selecting workers supplied by labor contractors and union hiring halls; and specifying that while employers must not consider an applicant’s referral to or participation in a diversion program when making hiring decisions, employers may consider the programs as evidence of rehabilitation or mitigating circumstances after a conditional offer of employment has been made if offered as such by an applicant. The regulations also highlight that employers may be subject to local laws or ordinances that impose additional limitations.

Jackson Lewis continues to track administrative updates pertaining to employers. If you have a question about this or related administrative developments contact a Jackson Lewis attorney to discuss.

On September 29th, California Governor Gavin Newsom signed into law AB 1281, an amendment to the California Consumer Privacy Act (“CCPA”) that would extend the current exemption on employee personal information from most of the CCPA’s protections, until January 1, 2022. The exemption on employee personal information was slated to sunset on December 31, 2020.  It is important to highlight that under the current exemption, while employees are temporarily excluded from most of the CCPA’s protections, two areas of compliance remain: (i) providing a notice at collection, and (ii) maintaining reasonable safeguards for a subset of personal information driven by a private right of action now permissible for individuals affected by a data breach caused by a business’s failure to do so.

Reach the full article on Jackson Lewis Workplace Privacy, Data Management & Security Report.