One of the first employment-related bills signed by Governor Newsom this legislative session was Assembly Bill (“AB”) 2257, which recasts, clarifies, and expands exemptions to AB 5, last year’s bill relating to independent contractors.

In September 2019, Governor Newsom signed into law AB 5, which codified the “ABC Test” adopted by the California Supreme Court in Dynamex Operations West, Inc. v. Superior Court of Los Angeles, 4 Cal.5th 903 (2018), to determine whether a worker should be classified as an independent contractor or employee.  Under the ABC Test, a worker is presumed to be an employee unless the hiring entity can establish three factors. When the Legislature passed AB 5, it included certain exemptions: if a worker falls within one of the exemptions, then the worker’s status as an employee or independent contractor is determined using the less stringent multi-factor test established in S. G. Borello & Sons, Inc. v. Department of Industrial Relations, 48 Cal.3d 341 (1989).

AB 2257’s changes to the existing exemptions include:

  • Referral Agency Exemption: Expands and clarifies the types of services covered by the exemption, including adding youth sports coaching, interpreting services, and consulting services. Clarifies that the exemption does not apply to referrals for services provided in certain high hazard industries and referrals for businesses that provide janitorial, delivery, courier, transportation, trucking, agricultural labor, retail, logging, in-home care, or constructions services other than minor home repair.
  • Professional Services Exemption: Expands and clarifies the exemption as it applies to photographers, photojournalists, videographers, and photo editors, and expands the exemption to include “master class” instructors, appraisers, registered professional foresters, and home inspectors.
  • Exemption for Certain Occupations: Broadens the scope of occupations exempt from AB 5 to include landscape architects, manufactured housing salespersons, competition judges, and individuals providing underwriting inspections, premium audits, risk management, or loss control work for insurance and financial service industries.

AB 2257 also establishes new exemptions for certain individual performance artists as well as occupations related to the creating, marketing, promotion, and distribution of sound recordings and musical compositions, including certain recording artists, vocalists, and musicians, managers of recording artists, and record producers.

Both the existing and the new exemptions to AB 5 contain specific requirements that must be met before an exemption will apply to a worker.

AB 2257 was effective immediately upon the Governor’s signing of the bill.

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 August 31st, the California legislature closed its 2019 – 2020 session with the Assembly and Senate passing over 35 employment-related bills. However, thus far, the only employment-related bill the Governor has signed is Assembly Bill 3364 (“AB 3364”). AB 3364, titled “Judiciary omnibus,” covers a myriad of items from the licensure of attorney to the debts of limited liability corporations.

One portion of AB 3364 relevant to employers is the amendments to Government Code sections 12921, 12926, and 12940. These amendments clarify that the Fair Employment and Housing Act (“FEHA”) prohibits discrimination against individuals who either are veterans or because of the individual’s military status, instead of veteran and military status. This makes conforming, nonsubstantive changes to the term “veteran or military status” in the FEHA.

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, please contact a Jackson Lewis attorney to discuss.

As safe in-person voting became an issue in other states, California Governor Gavin Newsom issued an executive order requiring each county’s election officials to send vote-by-mail ballots to registered voters for the November election. The Governor also issued an executive order requiring counties to provide early polling locations for at least three days prior to election day. In light of these initiatives to ensure wide availability of voting options in California, employers may question if they still are required to provide time during the workday for their employees to vote?

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

On August 28th, Governor Newsom announced new reopening plans for California in hopes of preventing another COVID-19 surge. The plan incorporates information learned over the past six months in addition to new scientific discoveries to create a system for reducing the transmission of COVID-19. It involves a four-tiered color system that ranks counties based on the number of virus cases and infection rates. Purple means that COVID-19 is widespread in the county, Red means substantial infections, Orange means moderate infections, and Yellow means minimal infections. The color provided will indicate how sectors can operate. Governor Newsom said the new system is “simple, stringent, and slow.” Business owners can check the status of their county or industry on the State’s new website: https://covid19.ca.gov/safer-economy/

In conjunction with the announcement, the California Department of Public Health (“CDPH”) issued a new statewide order explaining the basis for the four-tiered system. The order explains that counties may reopen specified sectors according to their tier. However, a county that moves to a tier permitting further reopening “must pause for 21 days,” or a different period identified by the CDPH before reopening additional industries. Conversely, counties must also close sectors based upon their tier. Counties will also be permitted to implement or maintain more restrictive measures if the Local Health Officer determines it is warranted.

Jackson Lewis will continue to monitor developments about state and local guidance for businesses pertaining to COVID-19. If you have questions about complying with state and local health orders pertaining to your business, contact a Jackson Lewis attorney to discuss.

With the increase in COVID-19 cases in California and across the nation, employers are faced with a number of new challenges in the workplace, one of which is determining when employees may return to work after they have tested positive for the virus. Unfortunately, there have been mixed messages from state and federal authorities on this issue.

California’s Department of Fair and Employment and Housing (“DFEH”) released guidelines for employers about COVID-19 and the workplace, which were last updated in late July. The related FAQ indicates that, under the current circumstances, and in accordance with guidance from the Center for Disease Control (“CDC”) and the United States Equal Employment Opportunity Commission (“EEOC”), “employers may require employees to submit to viral testing but not antibody testing before permitting employees to enter the workplace…”

The DFEH guidance further indicates that decisions to allow employees to return to work may follow either a symptom-based, time-based, or test-based strategy. “Symptom-based strategy” refers to the elapsing of time following the cessation of symptoms, “time-based strategy” typically refers to the elapsing of time following an asymptomatic person’s confirmed result, and “test-based strategy” refers to requiring a person who previously tested positive to obtain a second, negative test result.

Also at the end of July, the state of California released the “COVID-19 Employer Playbook,” which provided some guidance on the minimum criteria for employees to return to work. That guidance stated that that symptomatic positive employees could return to work 24 hours after the last fever, without the use of fever-reducing medications, if there had been an improvement in symptoms and at least 10 days had passed since symptoms first appeared. This was also indicated in the California Department Public Health (“CDPH”) Order, issued in June, about responding to COVID-19 in the Workplace.

More recently, on August 24th, the CDPH released guidance which reiterates when employees who have tested positive may return to work, as follows:

  1. Individuals who test positive for SARS-CoV-2, the virus that causes COVID-19, and who have had symptoms, may return to work or school when:
    1. At least 10 days have passed since symptoms first appeared, AND
    2. At least 24 hours have passed with no fever (without the use of fever-reducing medications), AND
    3. Other symptoms have improved.
  1. Individuals who test positive for SARS-CoV-2 who never develop symptoms may return to work or school 10 days after the date of their first positive test for SARS-CoV-2.

The recent CDPH guidance states that employers should follow a time- and symptom-based strategies and discourages employers from using a test-based strategy (i.e., requiring employees to obtain a second negative test result before returning to work).

Employers should also check local public health orders for their county when determining how and when to return to the worksite an employee who has recovered from COVID-19. It is important to also confer with your employment counsel when implementing new policies and procedures related to COVID-19, particularly given that the guidance issued by government authorities continues to evolve at a rapid pace.

Jackson Lewis is tracking national, state and local developments pertaining to COVID-19 in the workplace. If you have questions about developing policies and procedures related to COVID-19 and your business, contact a Jackson Lewis attorney to discuss.

In 2018, California law extended anti-harassment training requirements to employers with 5 employees or more and mandated that non-supervisors also receive such training, in addition to supervisors. The original deadline for completion of that training was January 1, 2020.  Current California law requires employers with 5 or more employees to provide one (1) hour of sexual harassment prevention training to nonsupervisory employees and two (2) hours of sexual harassment prevention training to supervisors and managers.  This interactive training must occur every two years and must include prevention of abusive conduct as a component, among several other topics required to be covered.

In 2019, California Governor Newsom signed legislation extending the deadline under California Government Code section 12950.1 for initial compliance to January 1, 2021. The amendment to the California Government Code also clarified that an employer that provided sexual harassment training in 2019 is compliant with the training requirements and is not required to provide training again for two years.

Many employers delayed training in early 2020, due to COVID-19 stay at home orders and hoped by summer they could reschedule. As in-person training continues to be difficult under state and county guidance, many employers thought the Governor might further extend the deadline.

However, much like the state minimum wage increase set for January 1, 2020, neither the California legislature nor the Governor have made any moves to extend the deadline for compliance despite the ongoing pandemic.  The January 1, 2021 compliance deadline to provide sexual harassment training remains.

While providing employees in-person training may not be feasible, the California Department of Fair Employment and Housing (“DFEH”) allows for training to occur live in a classroom, online, or in “any other effective, interactive format.” Training may be completed by employees individually or as part of a group presentation and may be completed in segments as long as the total hourly requirement is met.

Regardless of how training is completed, employers should remember to retain records of all employees’ training for a minimum of two years.

Jackson Lewis provides California compliant training via webinar to allow for group presentations even while employees are remote. If your employees need to be trained, contact a Jackson Lewis attorney to discuss your training needs.

As fire season starts and some areas of California and several other states are attempting to contain wildfires, employers need to consider their obligations to employees. In some circumstances, employers must implement a variety of controls to protect employees from wildfire smoke, including engineering and administrative controls, or require the use of personal protective equipment (“PPE”). Employers may also have employees’ leaves of absence and wage compliance issues to consider.

Worker Safety

Federal OSHA does not have a wildfire standard but does require that employers protect employees from anticipated hazards associated with wildfires that employees are likely to come in contact with as part of their general duty obligations. Federal OSHA has also issued guidance indicating that employers with operations at risk of exposure to wildfires should be prepared for wildfire exposures through the development of preparedness and evacuation plans, establishment of safety zones around buildings, and availability of emergency response equipment.

In California, Cal OSHA regulations require that employers take steps to protect their workers from potential exposures to wildfire smoke, which can present a hazard by employees breathing in harmful chemicals, gases, or fine particles that have the potential to harm their respiratory systems.  Steps to protect workers can include moving operations indoors, providing respiratory protection, or ceasing operations until outdoor air quality is improved.

When employers in California have a reasonable expectation that employees could be exposed to wildfire smoke at a worksite, employers must monitor the air quality index (“AQI”) and determine employees’ potential exposure to particulate matter. Employers can also obtain information on AQI and potential particulate matter exposures directly from EPA, California Air Resources Board (“CARB”), or their local air pollution control and air quality management districts.

Under Cal OSHA regulations, employers also have certain obligations if the AQI reaches certain parameters including:

  • Informing employees of wildfire smoke hazards, the current air quality, and protective measures available.
  • Providing effective training and instruction to employees on the AQI, resources for monitoring air quality conditions, potential sources of exposure to particulate matter, and the employer’s engineering (i.e., feasible operational modifications) and administrative controls (e.g., schedule changes) to protect employees from potentially harmful wildfire smoke exposures.
  • Modifying the workplace where feasible to reduce potential exposure.
  • Providing appropriate respiratory protection equipment, when needed, such as disposable filtering facepiece respirators or dust masks.

Leaves

In addition to the immediate safety at the worksite, a disaster like a wildfire may mean employees require time off of work. Under the Family Medical Leave Act (FMLA) and California Family Rights Act (CFRA), an employee may be eligible for leave if the employee or a family member develops a serious health condition due to the wildfires. If the employee has paid sick leave time available, they could first take paid leave before taking unpaid leave under FMLA or CFRA.

If an employee is a volunteer firefighter, reserve police officer, or emergency rescue person, they may be eligible to take a leave of absence to perform emergency duties.

Wage Compliance

If a business has to close due to wildfires, the business needs to be prepared to handle payroll issues such as missing timesheets. If incorrect paychecks go out, employers should attempt to correct issues as soon as possible to avoid potential penalties should an employee make a claim. Moreover, exempt employees generally must receive their full salary, if there is a forced closure of less than a full workweek.

If you need assistance ensuring compliance with California’s safety and labor regulations, contact a Jackson Lewis attorney to discuss.

Changes in local regulations across California continue to shift the legal landscape for employers, bringing massive implications to their business. On August 18, 2020, Sonoma County passed a paid sick leave ordinance (the “Sonoma Ordinance”), which took effect immediately and sunsetting on December 31, 2020.  The Sonoma Ordinance brings sweeping changes to businesses in unincorporated Sonoma County.

Employers Covered

The Sonoma Ordinance covers employees who are not covered under the Families First Coronavirus Response Act (“FFCRA”), which was signed into law on March 18, 2020. While the FFCRA applies to companies with fewer than 500 employees, the Sonoma Ordinance covers those employees of companies with more than 500 employees either locally or nationally. Further, the Sonoma Ordinance covers employees who work more than two hours in the unincorporated areas of the County, not applying to Santa Rosa employees, which has passed its own ordinance.

Health Care Workers Included

Unlike the FFCRA and many other local ordinances, Sonoma County rejected an exemption for the health care industry and first responders. The employer may still deny the leave if the employer makes a good faith determination that granting such leave would create a staffing shortfall, such that operational needs dictate denial of some or all of the employee’s request for use of the leave.

Supplemental Leave Allowed Under Certain Conditions

Full-time employees are provided 80 hours of paid sick leave and part-time employees receive a propionate share based on a formula relating to their average hours worked.

Employees may take supplemental leave for any of the following reasons:

  1. The Employee has been advised by a health care provider to isolate or self-quarantine to prevent the spread of COVID-19;
  2. The Employee is subject to quarantine or isolation by federal, state or local order due to COVID-19;
  3. The Employee is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
  4. The Employee needs to care for an individual who is subject to a federal, state or local quarantine or isolation order related to COVID-19, or has been advised by a health care provider to self-quarantine related to COVID-19, or is experiencing COVID-19 symptoms and is seeking a medical diagnosis; or
  5. The Employee takes time off work because the Employee needs to provide care for an Individual whose senior care provider or whose school or childcare provider is closed or is unavailable in response to a public health or other public official’s recommendation.

Leave Pay Cap

Similar to the FFCRA and other local ordinances, leave pay is capped at no more than $511, up from $200, per day and $5,110 for a two-week period, up from $2,000.

Coexistence with Other Available Forms of Leave/Offsets

The total number of hours of paid sick leave is in addition to any paid sick leave that may be available to the employee under California Labor Code Section 246, as well as any preexisting paid time off (vacation, sick and/or PTO) provided to employees before March 16, 2020, subject to an offset. While an employer may not require an employee to use any other paid or unpaid leave, sick pay paid time off, or vacation time provided by the employer.

Offset Explained:

If an employee has at least 80 hours of accrued paid sick leave benefits as of August 18, 2020, or at least 160 hours of a combination of paid sick leave, vacation, and paid time off benefits the obligation to provide paid sick leave under the Sonoma Ordinance shall be deemed to be satisfied.

To the extent accrued paid sick leave benefits afforded employees as of August 18, 2020, are less than 80 hours, or accrued leave benefits are less than one hundred sixty 160 hours, an Employer is required to furnish paid sick leave to the extent of such deficiency.

Documentation Requirements/Replacements

The Sonoma Ordinance specifies that employers may only take “reasonable” measures to confirm the employee’s eligibility and prohibits requiring an employee to furnish a doctor’s note or other supporting documentation. Employers may require employees to identify the basis for which the employee is requesting leave under the Sonoma Ordinance.

Further employers are prohibited from requiring employees to find or confirm a replacement as a condition of obtaining leave under the Sonoma Ordinance.

Notice Requirement

Employers are mandated to provide notice to employees of their rights under the Sonoma Ordinance by posting a notice in English and Spanish in the workplace or any intranet or email.

Employers should remain mindful of all local ordinances that may potentially affect their business. Local ordinances vary across counties and in some situations, cities, requiring employers to keep their pulse on numerous changes. Jackson Lewis is tracking state and local regulations and statutes pertaining to COVID-19 and leaves of absence. If you have questions about compliance with this ordinance or related ordinances contact a Jackson Lewis attorney to discuss.

In March 2020, many employers suddenly found themselves managing a mostly remote workforce due to COVID-19. As the pandemic stretches on, some businesses remain remote because of necessity, while others are considering the many advantages of a remote workforce.

As employees continue teleworking, employers should familiarize themselves with the requirements for reimbursement under California law.

California Labor Code section 2802 requires employers to reimburse employees for “all necessary business expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties.” Before the pandemic, business expenses were usually limited to costs such as business travel or personal car mileage because workforces were operating within offices. Now, employers must consider an expanded view of business expenses as employees remain at home.

For example, prior California court decisions have concluded employers must reimburse for portions of an employee’s cell phone use when the employee uses their cell phone for work. The Department of Industrial Relations (“DIR”) reiterated this requirement in its recent guidance related to reopening. These types of reimbursements include personal use of devices and even home internet.

However, reimbursement may not be required when an employer provides devices to employees, even if the employee ultimately elects to use their own personal device.

The complicated question is, “how much reimbursement should be provided for the use of home internet or personal cell phones?” Unfortunately, unlike the IRS guidance on mileage, no similar measure exists for the use of technology. The statute and courts only indicate a reasonable reimbursement is required. As a result, employers should assess the amount of time employees will be using personal devices and internet service to determine what is reasonable.

Finally, employers should consider developing policies for the use of personal devices for work and reimbursements.

If you need assistance with ensuring compliance with remote work statutes or developing policies to manage a remote workforce, please contact a Jackson Lewis attorney to discuss.

In July, San Francisco’s Back to Work ordinance went into effect.  The ordinance requires employers operating in San Francisco to offer reemployment to eligible employees laid off as a result of the COVID-19 pandemic and the related stay at home and shelter in place orders issued by the City of San Francisco when they are rehiring for the same or similar classifications.

Recently, the Office of Economic and Workforce Development, the agency charged with enforcement of the ordinance has published a webpage for the ordinance, which includes model notices as well as a Frequently Asked Questions page.

The FAQ page clarifies several areas of the ordinance.

Covered Employees

The FAQ states that eligible workers are those who were employed at a worksite located in San Francisco for at least 90 days during the prior calendar year and who were laid off due to the COVID-19 emergency on or after February 25, 2020.

 Employer Obligations

The FAQs provide the following detailed information about employer obligations under the ordinance:

  1. Provide notice to eligible employees including those laid off between February 25, 2020, and the effective date of the ordinance. The FAQ provides for an unofficial safe harbor, which indicates that notice must be sent no later than September 6, 2020, for those layoffs that occurred prior to the effective date of the ordinance.
  2. Make reemployment offers to laid-off workers in order of seniority if the employer is hiring for the same or similar position.
  3. Provide notice to the Office of Economic and Workforce Development of layoffs of 10 or more employees within 30 days of when the layoffs begin. As with notice to employees, this notice includes layoffs that occurred prior to the effective date of the ordinance. Similarly, there is an extended period until September 6, 2020, to provide notice to the City.
  4. Retain records of all information e.g., layoffs and offers of rehire for two years.
  5. Reasonably accommodate and not discriminate against a worker with a family care hardship as defined in the ordinance.

Offers of Reemployment

The FAQs state an employer is not required to offer reemployment to a laid-off eligible worker if:

  1. The employer learns after the lay-off that the eligible worker engaged in any act of dishonesty, violation of the law, violation of a policy or rule of the employer, or other misconduct while employed.
  2. The employer and the worker executed a severance agreement due to a lay off between February 25, 2020, and July 3, 2020.
  3. The employer laid off an eligible worker between February 25, 2020, and July 3, 2020, and hired another person for the laid-off worker’s position prior to July 3rd.

Jackson Lewis continues to track state and local regulations pertaining to COVID19. If you need assistance in compliance with this ordinance or other COVID19 issues, contact a Jackson Lewis attorney to discuss.