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.

At the end of July, the Department of Industrial Relations (“DIR”) released guidance to assist with the safe reopening of businesses in light of the ongoing COVID-19 pandemic. The guidance covers the following topics:

  • Employer Obligations to Keep the Workplace and Employees Safe
  • Face Coverings
  • Medical Checks
  • Returning to the Worksite
  • Waivers of Liability

The DIR states that employers must follow the California Department of Public Health’s (“CDPH”) Employer Guidelines if an employee tests positive for COVID-19. Employers should also: (1) instruct employees to stay home and notify the employer if they have symptoms of COVID-19, were diagnosed, or are awaiting test results; (2) report to CAL/OSHA any serious injury, illness, and death, including hospitalization from COVID-19 (if assessed to be work-related or likely to be work-related); and (3) consider testing employees in the workplace to identify any potential cases. An employee who appears to have COVID-19 symptoms in the workplace must be separated from other employees, customers, and visitors, and sent home.

Employees barred from work or sent home may be eligible for paid leave under any of the following:

  • Federal paid sick leave up to a possible 80 hours under the Families First Coronavirus Response Act (FFCRA)
  • COVID-19 Supplemental Paid Sick Leave Ordinances
  • California Paid Sick Leave under California Labor Code Section 246
  • Local Paid Sick Leave Laws

In addition, employers must require employees to wear face coverings at all times, with limited exceptions. Face coverings must be provided at no cost to employees.

The guidance also provides clarity regarding medical checks. Specifically, the DIR confirmed an employee required to undergo medical checks, including on-site temperature checks, must be compensated for the time spent undergoing the check. This is because time spent undergoing temperature checks is “time worked” under the Labor Code, as it is “under the control of the employer.” However, the DIR states that whether medical checks performed at home should be compensated depends on the factual circumstances of each case and should be evaluated by the “level of control exercised by the employer.” In some cases, medical checks may be compensable if “an employer-mandated that workers spend a few minutes before every shift following a set of detailed procedures using a particular cell phone application to take and record their temperature and then fill out a health questionnaire of a non-trivial length.”

The DIR also notes that if an employee is required to use a personal cell phone as part of a medical check, the employer must provide a business reimbursement for cell phone use. Alternatively, if an employer provides a device at no charge to the employee, reimbursement is not required.

The DIR also issued guidance related to returning to the worksite. An employer may require employees who have been working remotely to return to the worksite presuming the employer has reviewed relevant guidance and put into place an action plan to ensure the safety of the workplace.

Lastly, the DIR has provided guidance related to waivers of liability sought by employers. Specifically, employers may not ask employees to waive their rights under the Labor Code. For example, employers must provide employees’ compensation benefits for injuries or illnesses contracted during the course of employment. Employers must also provide safe and healthy workplace conditions. Neither of these requirements can be waived.

If you have questions about return to work issues or ensuring compliance with state or local COVID19 regulations and requirements, contact a Jackson Lewis attorney to discuss.

To assist with protecting the essential workers who work in the agricultural industry, California’s Department Industrial Relations Division of Occupational Safety and Health (“Cal OSHA”) issued updated guidance on coronavirus (“COVID-19”) infection prevention procedures for employers in the agricultural industry.

While the guidance does not impose new legal obligations on employers, the guidance is meant to assist agricultural employers in their efforts to prevent and minimize the spread of COVID-19. The guidance also provides helpful information on details Cal OSHA expects will be addressed in an employer’s amendments to their Injury Illness Prevention Program (“IIPP”) in response to potential COVID-19 exposures.

Like all employers in California, who are operating under applicable state and local public health orders, agricultural employers must provide training to employees on COVID-19, including symptoms of COVID-19 and potential sources of exposure to the virus, along with methods for preventing and minimizing risks of exposure, including use of cloth face coverings, social distancing measures, and good hygiene practices (e.g. frequent hand washing).

The guidance also recommends that agricultural employers detailing specific procedures to prevent the spread of COVID-19 in their IIPPs including:

  • Sending employees with COVID-19 symptoms home or obtaining medical care for them as needed.
  • Establishing procedures to notify local health officials when someone has a COVID-19 infection.
  • Encouraging sick workers to stay home.
  • Advising employees who stay home with symptoms not to return to work until at least 3 days after recovery and 10 days after the original onset of symptoms, per CDC guidance.
  • Making hand-washing stations more readily available and encouraging frequent hand washing.
  • Establishing enhanced procedures for cleaning and disinfection.

Cal OSHA’s guidance further recommends that agricultural employers establish procedures to ensure that workers can maintain effective social distancing, such as adjusting line speeds, staggering work shifts and breaks, limiting crew sizes, and providing additional seating and shade structures

Finally, the guidance provides additional resources for agricultural employers including state and federal guidelines.

Jackson Lewis is tracking new rules and regulations related to COVID-19 and workplace safety. If you have questions or concerns about complying with California workplace regulations, contact a Jackson Lewis attorney to discuss.

Employment claims brought by a former claims adjuster were batted back and forth from California state court to Indiana federal court and nearly back again before the U.S. Court of Appeals for the 7th Circuit stepped in. On August 3, 2020, the 7th Circuit held the forum selection clause between the former claims adjuster and his employer must be given controlling weight in deciding where the case should be heard.

Defendant Ryze Claims Solutions (“Ryze”) is a comprehensive claims service company located in Indiana. Plaintiff Leslie Billings was a traveling claims adjuster and worked out of his home in California. Billings had entered into an employment agreement with Ryze in 2009 which included a forum-selection clause. A second agreement between Billings and Ryze was dated in 2016.  A forum-selection clause, in essence, allows the parties to a contract to agree where they will litigate if an issue arises out of the contract.

As happens, Billings took issue with some of Ryze’s employment policies and filed suit in state court in California. He alleged wage and hour violations under both the state labor code and the Fair Labor Standards Act. Ryze removed the claims to federal court in California.  Ryze then successfully transferred the venue to an Indiana federal district court based on the forum-selection clauses in its agreements with Billings.

The Indiana court granted Ryze’s motion for summary judgment as to all federal claims. Despite having heard a motion for summary judgment and having other motions pending, the Indiana district court then sent the case back to a California federal district court. In support of this action, the Indiana court cited to its own congested docket and the California court’s “familiarity” with California labor law.

Once again docketed in California, the California district court ordered the parties to show why the action should not be sent to state court. Ryze, in turn, filed a petition for mandamus with the 7th Circuit to bring the matter back to Indiana.

The 7th Circuit granted the petition.  The 7th Circuit held the district court must give “forum-selection clauses ‘controlling weight in all but the most exceptional cases.”  Finding nothing particularly exceptional, the 7th Circuit found that Indiana was the proper venue.

While this case is an example of a forum selection clause being enforced, employers are reminded of the requirements of Labor Code section 925. Section 925 states that an employer shall not require an employee who primarily resides and works in California to “adjudicate out of California a claim arising in California.   Section 925 applies only to contracts entered into on or after January 1, 2017.  Billings signed his employment agreements in 2009 and 2016.  If he had signed after 2017, then potentially, this case would not have made it out of California.  Section 925 does not apply where an employee is individually represented in the negotiations of the contract that contains the forum selection clause.

If you have questions about drafting or enforcing forum-selection clauses in the employment arena contact a Jackson Lewis attorney to discuss in more depth.

As campaign season heats up and political protests continue on top of an already stressed workforce, most employers seek to maintain a harmonious work environment. While perhaps tempting to regulate employee behavior to keep politics out of the workplace, employers should tread carefully.

Under California’s discrimination laws, political affiliation is not a protected classification.  On the other hand, Labor Code section 1101 states that an employer shall not make rules, regulations, or policies that prohibit employees from engaging or participating in politics, including becoming candidates for public office. Similarly, Labor Code section 1102 prohibits employers from coercing or influencing employees through adverse employment action to adopt or follow any particular course or line of political action or political activity.  As such, employers should be thoughtful in crafting policies about political expression in the workplace.

Employers may also want to regulate employees’ activities outside the work environment to avoid embroiling the business in controversy but must be cognizant of their employees’ rights to engage in lawful activities outside work, such as attending demonstrations or posting opinions on social media.

These freedoms for employees do not preclude employers from enforcing policies against harassment between employees whether it occurs in the workplace or on social media. Employers also may enforce policies prohibiting employees from attributing their own opinions or preferences to their employer, whether in social media or in public, as well as ensuring protection for the company and its intellectual property.

For assistance navigating these or other matters, contact the authors or your favorite Jackson Lewis attorney.

On July 24, 2020, the State of California released a “COVID-19 Employer Playbook” to guide employers in planning and preparing for the safe reopening of their businesses.  It combines guidance from various California agencies to ensure that employers have the tools they need to plan for a safe and clean workplace.  Notably, the Playbook is not meant to be exhaustive, as it does not include county-specific health orders, nor is it a substitute for existing safety and health-related regulatory requirements such as those from Cal/OSHA.

The Playbook provides guidance for managing and preventing outbreaks in the workplace, regulations for reporting identified cases, cleaning and disinfecting protocols, return to work guidelines following a confirmed case, and California paid sick leave requirements.  It also offers a comprehensive list of resources for employers, including industry-specific checklists from state regulatory agencies that monitor and enforce COVID-19 statutes and orders. These agencies include the Department of Alcoholic Beverage Control, the Department of Consumer Affairs, and the Department of Industrial Relations (which incorporates the California Division of Occupational Safety and Health and the Division of Labor Standards Enforcement).

Lastly, the Playbook educates employees on ways they can protect themselves and others, both in the workplace and at home. This includes enforcing face-covering requirements and suggested language and de-escalation measures for communicating with workers, customers, and visitors in the workplace about face coverings.

Jackson Lewis is tracking new rules and regulations related to COVID-19 and workplace safety. If you have questions or concerns about complying with California workplace regulations, contact a Jackson Lewis attorney to discuss.

Despite California’s recent statewide closures for indoor operations at restaurants, movie theaters, family entertainment centers, zoos, wineries, and closures for select hospitality businesses across more than 30 counties, Oakland passed a new right to reemployment ordinance. Like the Los Angeles ordinance, Oakland’s Ordinance is limited to industries related to certain hospitality operations, such as airport hospitality providers, event centers, hotels, and covered restaurant employers, including fast-food restaurants.

The Ordinance specifies that the airport hospitality providers are businesses that provide food, beverage, retail, or other consumer goods or services to the public at the Oakland International Airport. The Ordinance also applies to a variety of airport service providers at the Oakland International Airport.

The Ordinance covers only event centers in the City of Oakland that are more than fifty thousand (50,000) square feet or have five thousand (5,000) or more seats.

Under the Ordinance, a “Covered Restaurant Employer” is an employer with more than 500 employees, regardless of where the employees are employed, or is a Franchisee associated with a Franchisor or a network of Franchises that employ more than 500 employees in the aggregate.

The Ordinance applies to any employee who (i) was employed for at least six (6) months in the twelve (12) months preceding January 31, 2020, and (ii) whose most recent separation from employment occurred after January 31, 2020, was due to an economic, non-disciplinary reason, including but not limited to a lack of business due to a government-issued stay-at-home order, bankruptcy, or reduction in force. An employee working for a covered employer under the Ordinance need only work at least two (2) hours a week within the City of Oakland. There are additional rules in the ordinance regarding eligible employees.

Under the 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.

The Ordinance specifies that an eligible employee is qualified for a position if the employee:

  • Held the same or substantially similar position with the employer, or
  • Is or can be qualified for the position with the same training that would be provided to a new employee hired into that position.

Eligible laid-off employees shall be given no less than ten (10) days from the postmark date of the mailed letter and dates of email and text notification to accept or decline the offer.

Employers must also provide written notice to laid-off employees, who are not called back due to lack of qualifications if a person is hired other than a laid-off employee. The notice shall be provided within thirty (30) days of the date of hire. In addition, the employer must document the reason for the decision not to rehire the laid-off employee and must maintain this written document for at least three (3) years.

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