Insight & Commentary on California Workplace Law Issues & Developments
On April 16, 2020, California Governor Gavin Newsom issued Executive Order N-51-20, (“Executive Order”) which provides COVID-19 related paid sick leave for “food sector workers” who work for larger employers in the state. The California legislature is now considering codifying those leave requirements with Senate Bill 729.
Read the full article on the Jackson Lewis Disability, Leave & Health Management Blog.
On July 13th two of the largest school districts in California, Los Angeles Unified School District and San Diego Unified School District announced that the school year would start in August with students attending virtually – only. They have been joined by several school districts in Orange County, San Francisco , and Sacramento. Assisting employees as they attempt to balance work and childcare can be complicated in these difficult times.
Applicable Leaves
In recent months the federal and local governments passed paid leave laws with a focus on supporting families due to sudden school closures.
The federal Families First Coronavirus Response Act (FFCRA) provides paid leave for employees who needed to care for a child while their school or childcare provider was closed due to COVID-19 related reasons. FFCRA is limited to employers with under 500 employees with smaller employers of 50 or less potentially exempted from the Act. FFCRA requires employers to provide a maximum of 80 paid hours of leave for full-time employees.
The Department of Labor (“DOL”) published a Questions and Answers Page, which provides clarity to the issue of virtual schooling. The DOL states, “[i]f the physical location where your child received instruction or care is now closed, the school or place of care is ‘closed’ for purposes of paid sick leave and expanded family and medical leave. This is true even if some or all instruction is being provided online or whether, through another format such as ‘distance learning,’ your child is still expected or required to complete assignments.” As such, if an employee is FFCRA eligible he or she would be permitted to take leave under the Act.
The California Labor Commissioner has also released a Frequently Asked Question page clarifying that employees may apply their California Paid Sick Leave to a covered leave under California Labor Code section 230.8, a statute that allows employees to take leave due to a school emergency. The City of San Diego’s paid leave includes care for a child whose school or childcare provider is closed due to a public health emergency as a covered reason for its local sick leave.
Several cities and counties in California have also passed local supplemental paid sick leave ordinances requiring paid leave for employees caring for children whose schools or childcare are closed due to COVID-19. These ordinances were intended to cover larger employers not covered under the FFCRA and provide a maximum of 80 paid hours of leave. Since the FFCRA deems a closure to include virtual schooling, it would seem the same would apply for these ordinances intended to mirror the FFCRA and often reference the FFCRA in their definitions. As such, as school starts virtually in August, many employees may be seeking paid leave under the local ordinances and FFCRA to assist with virtual schooling.
Remote Work
Some employees may have already exhausted available leaves, and other employees may request to work remotely while supporting children with e-learning. If an employee is not already teleworking, there are some things employers should consider:
Employers may also want to prepare a telework agreement to ensure that the company and the employee share an understanding of the employee’s duties and hours while working remotely.
To ensure you are staying on top of national and local regulations surrounding COVID-19 in real-time register for the Jackson Lewis COVID-19 Advisor. Our firm has attorneys nationwide from multiple practices and industries actively assisting businesses on the rapidly evolving COVID-19 workplace challenges.
With the California Consumer Privacy Act (CCPA) now in effect (January 1, 2020) and enforceable by California’s Attorney General (“AG”) (July 1, 2020), the AG has published Frequently Asked Questions (FAQs). Designed to aid consumers in exercising their rights under the CCPA, the FAQs also contain helpful reminders for businesses and service providers regarding their obligations under the law.
The FAQs cover several main topics for consumers: general information, “Do Not Sell” requests, “Right to Know” requests, required notices, “Right to Delete” requests, right to nondiscrimination, and information about data brokers. As noted, FAQ responses include information businesses and service providers may want to review.
Read the full article on the Jackson Lewis Workplace Privacy, Data Management & Security Report.
Sacramento has passed the Sacramento Worker Protection, Health and Safety Act (Ordinance No. 2020-00260) which is effective as of July 15, 2020.
The ordinance requires all employers operating in the City of Sacramento to comply with certain specified safety practices and protocols, many of which are recommended by the California Department of Public Health and the Centers for Disease Control and Prevention (CDC), and requires larger employers to provide supplemental paid sick leave to employees for COVID-related reasons.
Required Safety Protocols
The ordinance requires that all Sacramento employers implement the following safety protocols:
The ordinance also provides that an employee may refuse to work if the employee reasonably believes that an employer is not complying with the required safety protocols.
Supplemental Paid Sick Leave
The ordinance also creates a supplemental paid sick leave requirement, similar to those passed by several cities in recent months.
Unlike the safety protocol requirements, this portion of the ordinance only applies to employers that have 500 or more employees nationally and are not covered by the federal Families First Coronavirus Response Act (FFCRA).
As with other similar local ordinances, the Sacramento’s ordinance provides 80 hours of paid time off for full-time employees; part-time employees receive paid time off equal to their average number of hours worked over a two-week period. The supplemental paid sick leave is paid at the employee’s regular rate of pay, subject to caps on the amount that must be paid to an employee on a daily and aggregate basis.
Supplemental paid sick leave may be used for the following reasons:
The ordinance contains other requirements, which employers operating in Sacramento should ensure they are following.
The ordinance will remain in effect until December 31, 2020.
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.
“What if neither party to an arbitration agreement places initials next to a jury waiver contained in the agreement, even though the drafter included lines for their initials?” asked the California Court of Appeal in Martinez v. BaronHR, Inc.,Cal. App. LEXIS 631 (2020).
The employee in Martinez was given several employment-related documents, including an arbitration agreement on the day he was hired. The employee later filed a lawsuit against his employer, asserting 18 employment-related causes of action. The employer moved to compel arbitration, but the trial court denied the motion.
The arbitration agreement included three separate sections acknowledging the parties’ mutual intent to arbitrate all disputes. Notably, one section stated, “Employer and Employee each agree that arbitration, as provided for in this Agreement, shall be the exclusive forum for the resolution of any covered dispute between the parties. In agreeing to arbitration, both Employer and Employee explicitly waive their respective rights to trial by jury.” Next to the margin of the final sentence was an area to be initialed by both parties. But neither the employee nor the employer initialed.
The Court of Appeal concluded that the arbitration agreement should nevertheless have been enforced by the trial court. The Court of Appeal reasoned that the agreement’s language established the parties’ mutual assent to submit all employment-related disputes to arbitration and to waive the right to a jury trial. Despite the lack of initials next to one of the jury waiver provisions, the Court of Appeal stressed that the parties manifested their assent to be bound by all the terms of the arbitration agreement because: (1) both parties signed at the signature block at the end of the arbitration agreement; and (2) the arbitration agreement explicitly stated that by signing the agreement, the parties agreed to be bound by all its terms.
Finally, the Court of Appeal stated the trial court should not have considered a declaration submitted by the employee, stating, “[U]nexpressed subjective intentions are irrelevant to the issue of mutuality.” In other words, unspoken intentions do not affect whether the parties agreed to arbitrate when the language in the agreement is clear.
Jackson Lewis will continue to monitor legal updates pertaining to arbitration agreements. If you have questions about employment arbitration agreements contact a Jackson Lewis attorney to discuss.
On July 13, 2020, the State of California announced that, due to the surge in COVID-19 cases and hospitalizations, the following industries must close indoor operations on a statewide basis:
Bars, breweries, and pubs are required to close all operations (indoor and outdoor).
In addition to these statewide closures, Governor Newsom ordered the closure of indoor operations for select businesses across 30 counties that have been on the County Monitoring List for three or more consecutive days. This order applies to the following sectors and events:
According to the California Department of Public Health, all industry and sector guidance documents that have been issued to date, including all infectious control measures such as the use of face coverings, will apply to outdoor settings and must be adhered to.
Outdoor operations may be conducted under a tent, canopy, or another sun shelter, so long as no more than one side is closed to allow for sufficient air movement.
These closures will remain in effect until further notice.
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.
While many counties around California moved into accelerated reopening, San Francisco County set its own pace. Though San Francisco has paused some reopening for now, as COVID-19 infection rates change, additional businesses will eventually be permitted to reopen.
San Francisco created detailed requirements for businesses, whether essential or otherwise, to follow during the pandemic. All businesses that are operating must have workers, including volunteers and contractors, self-evaluate their health on a daily basis before each shift. Some businesses are also required to ask COVID-19 screening questions of employees, contractors, and volunteers before starting work. The San Francisco Department of Public Health further encourages businesses and organizations to conduct health screening, even if not required to do so. Employers may use a variety of methods to conduct screening including the use of a physical handout, an automated phone call, or an online survey, but should ensure screening includes the Department’s required screening questions. Employers should also establish clear procedures for health screening activities, which identify who will conduct the screening, safety measures used during screening activities, methods for documenting health screening, and procedures the employer will follow if screening identifies an individual with COVID-19 symptoms or exposure. If documenting health screening activities, employers should be aware that the records could fall into the definition of an employee exposure record or medical record and be subject to thirty-year retention requirements in California Code of Regulations Title 8, Section 3204. The handout created by the city provides a list of questions for an employee to answer every day that they report to a worksite, and includes questions like, “Within the last 10 days have you been diagnosed with COVID-19 or had a test confirming you have the virus.” The same questions are also available on a website that employers may direct employees to. Notably, the San Francisco Department of Public Health is discouraging the use of temperature checks as part of an employer’s health screening procedures and indicates that measuring temperatures should only be used in “special circumstances in very specific settings where measuring temperatures is required.”
As asking employees about their symptoms and exposure to COVID-19 does not replace other safety measures, in addition to these health checks, San Francisco employers must also prepare a social distancing protocol. The employer’s social distancing protocol should clarify how employees may maintain a physical distance of 6 feet or more throughout the day, alternative safety measures if social distancing is not feasible, and protective measures to prevent unnecessary contact. All employees should be trained on the protocol and a copy of the protocol should be posted on-site someplace that employees will see it.
Similar to the general State requirements for businesses that are operating, San Francisco businesses must take precautions to protect employee health including:
As is now mandated across the state, San Francisco employers must require everyone to wear a face covering and encourage good hygiene practices.
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.
Many businesses are beginning their re-opening phases, while others are being forced to close again due to COVID-19 fluctuations. In such uncertain circumstances, many employers are struggling to find a balance between the safe and efficient operation of their businesses, and preparation for potential closure orders and/or business restrictions.
Due to the uncertainty of the circumstances, there is no way to predict what is in store for employers. However, the following are things to consider as COVID-19 persists:
It is recommended that reopened companies implement an action plan to ensure they are prepared to handle potential future closures due to the fluctuation of COVID-19 infections.
Some things businesses should do to prepare for a potential second wave of closures are:
To ensure you are staying on top of national and local regulations surrounding COVID-19 in real-time register for the Jackson Lewis COVID-19 Advisor. Our firm has attorneys nationwide from multiple practices and industries actively assisting businesses on the rapidly evolving COVID-19 workplace challenges.
At the end of June, the San Francisco Board of Supervisors passed an emergency ordinance creating a right of reemployment for certain employees laid off due to the COVID-19 pandemic. The ordinance became effective on July 3rd. Although Mayor Breed did not sign the ordinance, the City Charter allows the ordinance to take effect if the Mayor does not sign the ordinance within ten days of receiving it.
This ordinance applies to for-profit and non-profit employers that directly or indirectly own or operate a business in the City or County of San Francisco and employ, or have employed, 100 or more employees on or after February 25, 2020. The only employers exempted from the new ordinance are government entities and certain healthcare operations as defined under the Health Officer’s Order.
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, have 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.
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.
On June 25th the California State Senate passed a resolution to place a proposition on the November ballot to repeal Proposition 209 and amend the state constitution. Proposition 209 passed in 1996 and amended the state constitution to prohibit state governmental institutions from considering race, gender, or ethnicity, specifically in the areas of public employment, contracting, and education.
If approved by voters, this constitutional amendment would remove language prohibiting public universities, schools, and government agencies from using race or gender in their admissions criteria, hiring, and contract decisions.
The Senate Floor argument in favor of the repeal states that disparities pertaining to race and gender in the workplace still exist and Proposition 209 prevents California leaders from taking active measures to address those disparities. The opposition to the repeal states the purpose of passing Proposition 209 was to prohibit preferential treatment based on race, sex, color, ethnicity, or national origin. Proposition 209 has faced several legal challenges both in state and federal courts. In 1996 after its passage, a federal district judge blocked enforcement. However, the Ninth Circuit Court of Appeals subsequently overturned that ruling, allowing the amendment to proceed.
Jackson Lewis will continue to track the ballot initiative to repeal Proposition 209 and other legislation pertaining to the workplace. If you have questions about this or related legislation contact a Jackson Lewis attorney to discuss.
