Insight & Commentary on California Workplace Law Issues & Developments
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.
The City of Los Angeles’ right of recall and retention ordinance applies only to the following:
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.
Similar to Los Angeles, Oakland’s ordinance is limited to industries related to the hospitality industry including:
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.
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.
Like Los Angeles and Oakland, San Diego’s ordinance is limited to the hospitality industry including
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.
On September 30, 2020, Governor Newsom signed Assembly Bill 3075 (“AB 3075”) which expands the information corporations must include in the corporation’s statement of information filed with the California Secretary of State. Specifically, AB 3075, requires a corporation to include whether any officer or any director or in the case of a limited liability company, a member or manager, has an outstanding final judgment issued by the Division of Labor Standards Enforcement (“DLSE”) or court of law for a violation of any wage order or labor code violation.
AB 3075 also provides that a successor to any judgment debtor shall be liable for any wages, damages, and penalties owed to a judgment debtor’s workforce pursuant to a final judgment.
Jackson Lewis will continue tracking state legislation that is relevant to employers. If you have questions about the effects of this or other recent legislation contact a Jackson Lewis attorney to discuss.
On September 30, 2020, Governor Newsom signed Assembly Bill 2479, which extends until January 1, 2026, the exemption from the rest period requirements for specified employees who hold a safety-sensitive position at a petroleum facility and are required to respond to emergencies. Before the passage of this legislation, the exemption was scheduled to remain in effect until January 1, 2021.
The exemption provides that the requirement that employees be relieved of all duties during rest periods will not apply to an employee in a safety-sensitive position at a petroleum facility to the extent that the employee is required to carry and monitor a communication device and respond to emergencies, or is required to remain on the employer’s premises to monitor the premises and respond to emergencies.
The exemption is not without caveats. Specifically, when a non-exempt employee covered by this section is required to interrupt the employee’s rest period to address an emergency, the employer should authorize another rest period reasonably promptly after the circumstances that lead to the interruption. If this is not possible, the employer must pay the employee one hour of pay at that employee’s regular rate of pay for the missed rest period. Employers should also know that they are required to furnish an itemized statement of the total hours or total premium owed to an employee for this missed rest period.
Jackson Lewis will continue tracking state legislation that is relevant to employers. If you have questions about the effects of this or other recent legislation contact a Jackson Lewis attorney to discuss.
On September 30, 2020, the Governor signed Assembly Bill 323 (“AB 323”), which is intended to support local journalism.
Part of the new law focuses on California’s official advertising, requiring the Department of General Services publish by July 1 each year information relating to payments of placement marketing and outreach advertising material by each state agency.
The latter part of the bill expands exemptions of the application of Assembly Bill 5 (“AB 5”) to newspaper carriers. Specifically, AB 323 expands the exemption applicable to newspaper carriers by removing the condition that a newspaper carrier works under contract either with a newspaper publisher or newspaper distributor.
AB 5, passed last year and codified and expanded the California Supreme Court case Dynamex Operations West v. Superior Court, creates a presumption that a worker is an employee unless specific requirements are met to allow the individual to act as an independent contractor. AB 323’s exemption from AB 5 for newspaper carriers expires in 2022.
Jackson Lewis will continue tracking state legislation that is relevant to employers. If you have questions about the effects of this or other recent legislation contact a Jackson Lewis attorney to discuss.
On September 30, 2020, Governor Newsom signed Assembly Bill 1512 (“AB 1512”), which for the first time allows employers to require their unionized security officers to take on-duty rest breaks. Historically, employees could agree to take on-duty meal breaks (with certain prerequisites), but the law was silent as to on-duty rest breaks. In enacting AB 1512, the legislature recognized that security officers must be able to respond to emergency situations without delay, must carry and monitor a communication device at all times, and must remain on the premises and on-call during paid rest breaks.
This law provides much-needed clarity to the applicable meal and rest break standards for security officers in California. Effective immediately, registered security officers covered by a valid collective bargaining agreement may be required to (1) stay on the premises during rest breaks, (2) remain on-call during rest breaks, and (3) carry and monitor a communication device during their 10-minute rest breaks.
In order for this rule to apply, the collective bargaining agreement must expressly provide for:
If the security officer’s on-duty rest break is interrupted (i.e. if the officer is called upon to return to performing their active duties), the officer may restart the 10-minute rest break as soon as practicable. A rest break is not “interrupted” just because the officer must remain on the premises, must remain on call and alert, and must monitor a radio or other communication device. A rest break premium penalty is only owed if the security officer is unable to take an uninterrupted 10-mintue break for every four hours worked or every major fraction thereof. To the extent this law conflicts with the California Supreme Court’s decision in Augustus v. ABM Security Services, Inc. (2016) 2 Cal.5th 257, the Augustus case is abrogated.
Jackson Lewis will continue tracking state legislation that is relevant to employers. If you have questions about the effects of this or other recent legislation contact a Jackson Lewis attorney to discuss.
On September 30, 2020, Governor Newsom signed Assembly Bill 1947, which extends the period to file a discrimination or retaliation complaint to one year with the California Division of Labor Standards Enforcement (“DLSE”) or better known as the Labor Commissioner. Before the passage of this legislation, employees alleging they had been discharged or otherwise discriminated against in violation of any law enforced by the California Labor Commissioner were required to file a complaint with the Division of Labor Standards Enforcement within 6 months after the occurrence of the violation. The Labor Commissioner was required to commence an action to enforce labor standards within 3 years of their accrual.
The extension of the statute of limitations from 6 months to one year is applicable to claims for discrimination or retaliation against an employee regarding any law enforced by the DLSE. Employers should also be aware that there are different statute of limitations for employees to bring other types of claims at the DLSE. For example, an employee has three years to bring a claim for unpaid wages.
There may be an increase in employee claims for violations of Labor Code 1102.5. The statute also now authorizes reasonable attorney’s fees to a plaintiff who brings a successful action for violation of Labor Code 1102.5. Labor Code 1102.5 prohibits an employer from making or enforcing any rule, regulation, or policy that prevents employees from disclosing information that the employee reasonably believes is a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation.
Jackson Lewis will continue tracking state legislation that is relevant to employers. If you have questions about the effects of this or other recent legislation contact a Jackson Lewis attorney to discuss.
Governor Newsom signed Assembly Bill 2399 on September 30, 2020, which extended the definitions for Paid Family Leave under Sections 3302 and 3307 of the Unemployment Insurance Code to include additional coverage for active military members and their families. The existing state Paid Family Leave program provided wage replacement benefits to workers who take time off to care for a seriously ill family member or bond with a minor child within one year of birth or placement. Effective January 1, 2021, Paid Family Leave will expand to now include a third category of covered time off for participation in a qualifying exigency related to the active duty or call to active duty of the individual’s spouse, domestic partner, child, or parent in the Armed Forces of the United States.
Existing law under other classifications required certain documentation of a qualifying exigency, including a copy of new active duty orders or other documentation, and this law will provide that new documentation requirement would now apply to a need for Paid Family Leave because of a qualifying exigency.
The new law revises definitions for the purpose of the qualifying exigency provisions, including “care recipient,” “care provider,” and “family care leave” and adds a definition of “military member.”
Jackson Lewis will keep tracking state legislation relevant to employers. If you have questions about the effects of this or other recent legislation contact a Jackson Lewis attorney to discuss.
