Cal/OSHA just published a Fact Sheet and a Poster regarding Cal/OSHA’s new requirement for covered employers to create and maintain a Hotel Housekeeping Musculoskeletal Injury Program (“MIPP”) and also train their housekeepers with respect to the MIPP. We previously discussed California’s new requirement in our blog on June 25, 2018 called, California’s Hotel Housekeeping Standard: Ready or Not, Here it Comes.

By July 1, covered employers must establish, implement, and maintain a MIPP that addresses risk factors specific to housekeepers. The written MIPP may be incorporated into a California Injury Illness or Prevention Program (“IIPP”) or kept as a separate program. In addition to the MIPP, supervisors and housekeepers must be trained in:

  • Signs and symptoms of musculoskeletal injuries;
  • The elements of the MIPP;
  • The process for reporting safety and health concerns without fear of reprisal;
  • Good body mechanics and the use of controls in the workplace;
  • The importance of reporting symptoms early; and
  • Practice of using identified controls and tools.

Training must occur when the MIPP is first established, to all new housekeepers and supervisors, to all housekeepers given new assignments for which training was not previously provided, and at least annually thereafter. To ensure compliance with the new standard, covered employers in California should develop their MIPP and train housekeepers on its contents. In addition, employers should plan to begin conducting worksite evaluations to ensure that they are completed by October 1, 2018.

If you have any questions regarding Cal/OSHA’s new requirement, please feel free to contact Bradford T. Hammock in our OSHA group or Jonathan Siegel or the attorney you normally work with at Jackson Lewis.

California Assembly Bill 3247 amends the California Arbitration Act (Cal. Code Civ. Proc. § 1280 et seq.) by replacing the current term revocation with rescission. The bill removes any potential ambiguity by inserting the proper terminology.

On July 16, 2018, California Governor Jerry Brown signed into law Assembly Bill 3247 (“AB 3247”), which amends the California Arbitration Act (Cal. Code Civ. Proc. § 1280 et seq.), specifically, section 1281.2 of the California Code of Civil Procedure.  Effective January 1, 2019, section 1281.2 will now state that a court may not enforce an arbitration agreement if “grounds exist for rescission of the agreement, [emphasis added]” as opposed to the prior language which called for “grounds [to] exist for the revocation of the agreement [emphasis added].” (Assem. Bill No. 3247 (2017-2018 Reg. Sess.) The bill also makes other non-substantive changes.

Existing law currently requires a court, on petition of a party to an arbitration agreement alleging: (1) the existence of a written agreement to arbitrate a controversy and (2) that a party to the agreement refuses to arbitrate the controversy, to order the petitioner and the respondent to arbitrate the controversy if the court determines that an agreement to arbitrate exists, unless the court makes other determinations, including, among other things, that grounds exist for the revocation of the agreement. (Code Civ. Proc. § 1281.2.)

As the California Supreme Court observed in Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal. 4th 83, 98, revocation of a contract is a misnomer because only offers to create a contract can be revoked. If an offer is revoked, there is by definition no contract or agreement. Once a contract has been formed, it is only undone by rescission.  Armendariz was further cited in the Assembly Committee analysis.  (Assem. Com. on Judiciary, Analysis of Assem. Bill No. 3247 (2017-2018 Reg. Sess.) as amended April 30, 2018.) Moreover, if the current revocation language is taken literally, there may be situations where a court upholds an arbitration agreement when grounds for rescission exist (such as fraud, misrepresentation, mistake, or a lack of capacity to content), but which do not also constitute grounds for revocation. AB 3247 also resolves that potential issue.

Please contact Jessica Armijo with any questions or the Jackson Lewis attorney you work with normally.

If passed, California Senate Bill 937: Lactation Accommodation, will require employers to provide a lactation room, or location, in close proximity to the employee’s work space, and it must include prescribed features such as access to a sink and refrigerator. SB 937 also would deem denial of reasonable break time or adequate space to express milk a failure to provide a rest period in accordance with state law. Please find the rest of this article in our Disability, Leave & Health Management Blog here.

On July 16, 2018, Governor Brown signed into law SB 1500 which expanded protections for members of the Armed Forces of the United States and to members of the Federal Reserve components of the Armed Forces.

The new law makes clear that no business and other covered establishments may deny a member of the Armed Forces of the United States entrance when they are wearing their uniform. In the news, there have been different stories of businesses choosing to deny service or entrance for certain reasons. This new California law has made it clear that a business cannot deny entrance merely because a member of the Armed Forces is wearing their uniform.

This law also extends protections from discrimination, including discharge from employment, to members of the Federal Reserve components of the Armed Forces of the United States and members of the State Military Reserve. California law already protects members of the military or naval forces of the state or of the United States or a person ordered to military duty or training or by reason of being a member of the military or naval forces of the state or U.S.

Employers who regularly deal with the public and others may consider notifying their supervisors and employees about this new development. If you have any questions, please feel free to contact Jonathan A. Siegel or the Jackson Lewis attorney you normally deal with.

In responding to claim of harassment, discrimination or retaliation based on protected categories, California employers must timely respond to and thoroughly investigate workplace complaints to avoid exposure. On July 9, 2018, a California Court of Appeal court found an employer liable where an employee was mocking a person for having a stutter on more than five, but less than fifteen occasions over a two-year period from 2006 to 2008.  In Caldera v. Department of Corrections and Rehabilitation, et al., the plaintiff brought suit after allegedly being subject to jokes over a two-year period of time.  The jury awarded plaintiff $500,000.  The trial court, finding the jury award excessive, granted a new trial as to damages.  Both parties appealed.

The Court of Appeal reversed the trial court’s decision to overturn the verdict. The Court noted that since two of the mocking incidents took place in front of several other employees and supervisors, and a psychologist testified that the mocking caused plaintiff to experience psychological disorders, a “totality of the circumstances” indicates that the harassing conduct was severe.  And even though neither plaintiff nor his witnesses could remember exactly how many times plaintiff was mocked or when exactly he was subject to any mocking the court found that the employer’s culture supported the jury’s finding that the harassing conduct was also pervasive. This case underscores the importance of being proactive to workplace concerns. California jurors and courts will not tolerate harassing conduct even when specifically linked to individuals mocking an employee’s stuttering problem. Please contact Jackson Lewis with any questions you may have about your harassment policies, procedures and practices.

San Francisco’s “Parity in Pay Ordinance,” prohibiting employers from inquiring about a job applicant’s salary history, took effect on July 1, 2018. This post discussed significant provisions of the ordinance as well as key considerations for employers to ensure compliance with the new regulation. Click here to read our full article regarding San Francisco’s salary history ban.

A key issue for any business facing class action litigation in response to a data breach is whether the plaintiffs, particularly consumers, will have standing to sue. Standing to sue in a data breach class action suit, largely turns on whether plaintiffs establish that they have suffered an “injury-in-fact” resulting from the data breach. Plaintiffs in data breach class actions are often not able to demonstrate that they have suffered financial or other actual damages resulting from a breach of their personal information. Instead, plaintiffs will allege that a heightened “risk of future harm” such as identity theft or fraudulent charges is enough to establish an “injury-in-fact”. Please find the rest of this article in our Workplace Privacy, Data Management & Security Blog here.

On July 4, 2018, Federal District Judge John A. Mendez granted a preliminarily injunction enjoining the State of California, Governor Brown, and Attorney General Becerra from enforcing parts of AB 450, the controversial new law that limited employer conduct when dealing with federal immigration enforcement. Specifically, the Judge stopped the enforcement of the California Government Code Sections 7285.1 and 7285.2 and California Labor Code Section 1019.2(a)&(b) as applied to private employers. The Judge upheld two other sanctuary state laws and part of AB 450.  The Judge stated in his decision:

AB 103, SB 54, and the employee notice provision of AB 450 are permissible exercises of California’s sovereign power. With respect to the other three challenged provisions of AB 450, the Court finds that California has impermissibly infringed on the sovereignty of the United States.

Effective January 1, 2018, California’s public and private employers have been prohibited from voluntarily consenting to a federal immigration enforcement agent’s request to enter nonpublic areas in the workplace or to voluntarily allowing the agent access to employee records unless the agent provides a judicial warrant under AB 450. Today’s decision directly impacts these two key areas for employers.

The Judge put on hold or enjoined California from enforcing Government Code Sections 7285.1 and 7285.2 against private sector employers. This means private sector employers can not currently be prosecuted for:

(1) allowing or consenting to a federal immigration enforcement agent’s request to enter nonpublic areas in the workplace;

OR

(2) for voluntarily allowing the federal immigration enforcement agent access to employee records.

The Judge also put on hold the new California prohibition against employers from re-verifying the employment eligibility of a current employee outside the time and manner required by federal law, under Section 1324a(b) of Title 8 of the United States Code.

However, the Judge upheld the notice requirements in AB 450 even though they place an administrative burden on California employers. California employers are still required to provide notice to employees as follows:

  • Pre-Inspection Notice: Within 72 hours of receiving a federal immigration agency’s notice of inspection (“NOI”) of employment records, including I-9 Employment Eligibility Verification forms, an employer must provide notice to each of its current employees. The posted notice must include (1) the name of the immigration agency conducting the inspection; (2) the date the employer received notice of the inspection; (3) the nature of the inspection to the extent known; and (4) a copy of the NOI. California has now released a template Notice of Inspection Form, which meets the requirements under Labor Code 90.2(a)(1).
  • Post-Inspection Notice: Within 72 hours of receiving written notice of an immigration agency’s inspection results, an employer must provide each affected employee (and his/her collective bargaining representative, if any) with written notice of the results. The notice must include (1) a description of any and all deficiencies or other inspection results related to the affected employee; (2) the time period for correcting any deficiencies identified by the immigration agency; (3) the time and date of any meeting with the employer to correct the deficiencies; and (4) notice that the employee has a right to be represented during any scheduled meeting with the employer. The notice must be tailored to the affected employee and hand-delivered the employee at the workplace. If this is not possible, the employer must endeavor to mail and e-mail the employee and the employee labor union, if applicable.

The federal District Court decision could be appealed by either party so employers should contact Jackson Lewis with any questions regarding the Court’s opinion or the application of AB450. Please feel free to contact Jonathan A. Siegel, Brian E. Schield or Richard B. Azada or the Jackson Lewis attorney you normally work with.

A high heat advisory for employers with outdoor workers in Central and Southern California has been issued by Cal/OSHA. With temperatures rising and more than 10 active wildfire incidents in California, Cal/OSHA is also advising employers that special precautions must be taken to protect workers from hazards from wildfire smoke and other possible concerns.

Cal/OSHA is concerned about workers being exposed to chemicals, gases, and fine particles that can potentially harm lung function, aggravate asthma and other respiratory functions.

Please see the Cal/OSHA Guidance for employers dealing with heavy smoke caused by the wildfires available on Cal/OSHA’s web page.

The Cal/OSHA guidelines review some of the measures employers can consider:

  • Engineering controls whenever feasible (for example, using a filtered ventilation system in indoor work areas)
  • Administrative controls if practicable (for example, limiting the time that employees work outdoors)
  • Providing workers with respiratory protective equipment, such as disposable filtering facepieces (dust masks)
    • To filter out fine particles, respirators must be labeled N-95, N-99, N-100, R-95, P-95, P-99 or P-100, and must be labeled approved by the US National Institute for Occupational Safety and Health (NIOSH).
    • Approved respiratory protective equipment is necessary for employees working in outdoor locations designated by local air quality management districts as “Unhealthy”, “Very Unhealthy” or “Hazardous”.
      • It takes more effort to breathe through a respirator and it can increase the risk of heat stress. Frequent breaks are advised. Workers feeling dizzy, faint or nauseated are advised to go to a clean area, remove the respirator and seek medical attention.
      • Respirators should be discarded if they become difficult to breathe through or if the inside becomes dirty. A new respirator should be used each day.

If you have any questions, please feel free to contact Jonathan A. Siegel or Bradford T. Hammock or the Jackson Lewis attorney you normally work with

On June 21st, California legislature Democrats reached a tentative agreement with a group of consumer privacy activists spearheading a ballot initiative for heightened consumer privacy protections, in which the activists would withdraw the the existing ballot initiative in exchange for the California legislature passing, and Governor Jerry Brown signing into law, a similar piece of legislation, with some concessions, by June 28th, the final deadline to withdraw ballot initiatives.  If enacted, the Act would take effect January 1, 2020. Please find the rest of this article in our Workplace Privacy, Data Management & Security Blog here.