Posts from December 2021.
Isn’t it Grand? New Law Provides That Wage Theft Can Be Charged as Grand Theft

Under Assembly Bill 1003, which becomes effective on January 1, 2022, the intentional theft of wages in an amount greater than $950 from any one employee, or $2,350 in the aggregate from 2 or more employees, by an employer in any consecutive 12-month period can be punishable as grand theft. Violations carry a possible prison sentence of up to three years. This criminal charge would be in addition to any attempt to recover wages, penalties, interest and attorneys’ fees and costs through a civil action.

For purposes of the new law, “wages” include wages, gratuities, benefits or ...

Mandatory Arbitration Agreements in California: Down, But Possibly Not Out

Businesses and attorneys alike have kept a close eye on the developments surrounding the challenge to California Assembly Bill 51 (now codified as Labor Code section 432.6). Most recently, in a 2-1 decision, the 9th Circuit Court of Appeals declared that the Federal Arbitration Act (“FAA”) did not preempt the new law which bars California employers from utilizing mandatory arbitration agreements or from requiring an employee to sign an arbitration agreement as a condition of employment.  One month after this decision came down, the Chamber of Commerce of the United States filed ...

California Restricts Use of Quotas in Warehouses

On January 1, 2022, Assembly Bill 701, which aims to regulate and curb the use of quotas in warehouses, will go into effect. While the bill was specifically intended to target Amazon, all California warehouse employers must pay close attention to its provisions and to accompanying regulations that will likely be issued in 2022.

The bill requires employers of 100 or more nonexempt employees at a single warehouse distribution center, or 1000 or more non-exempt employees at one or more warehouse distribution centers in the state, to provide each employee with a written description of ...

Recent Private Attorneys General Act Reform Efforts

Since being enacted in 2004, the Private Attorneys General Act (PAGA) has been a proverbial bogeyman for employers in California. Despite having only a one-year look-back period, PAGA claims commonly inflate plaintiff’s demands and judicial decisions to a punitive degree that decimates an employer’s incentive to maintain a business in California. This statute, among other factors, has served to motivate a mass exodus of businesses fleeing to other, more business-friendly states. While PAGA has withstood many challenges and attempted reforms over the years, there is ...

Employer Alert: New Compensation Requirement for Computer Software Overtime Exemption

Effective January 1, 2022, the California Department of Industrial Relations issued a new compensation threshold for exempt computer software employees, reflecting an increase of 5.3% from last year. 

To qualify for the overtime exemption, computer software employees must be paid a salary of at least $104,149.81 annually ($8,679.16 monthly), or an hourly wage of at least $50.00. In addition, a computer software employee must also meet the duties test set forth in California Labor Code Section 515.5, which are also included in all Wage Orders except Orders 14 and 16. 

More ...

Personal Jurisdiction in the Digital Age

The concept of “presence” for jurisdictional purposes has evolved with the widespread use of websites, social media and other digital platforms. A company or individual may have no physical presence in a forum, but may nevertheless be subject to personal jurisdiction there as a consequence of its activities on these digital platforms.

Importantly, general jurisdiction does not necessarily follow from the defendant’s maintenance and use of an “interactive” website. Thus, “[t]he level of interactivity of a nonresident defendant’s website provides limited help ...

California Reinstates Indoor Mask Requirement 

Citing the Omicron variant as a concern, the California Department of Public Health (CDPH) announced that it is requiring masks to be worn in all indoor public settings, irrespective of vaccine status, for the next four weeks (December 15, 2021 through January 15, 2022). Here is a link to the CA Department of Public Health's updated guidance (as of December 13, 2021) which reflect the latest masking state order.  The order specifies that masks must be worn in all California indoor public settings, irrespective of vaccine status, for the next four weeks (December 15, 2021 through January ...

New Private Attorneys General Act Developments

Enacted in 2004, California’s Private Attorneys General Act (“PAGA”) authorizes aggrieved employees to file lawsuits to recover civil penalties on behalf of themselves, other employees, and the State of California for Labor Code violations. Although only 25% of the amount recovered can be retained by the aggrieved employees with 75% going to the Labor and Workforce Development Agency, PAGA has become a tool commonly used by plaintiffs to attempt to inflate even minor claims beyond reasonable value.  Although the Legislature has made minor changes to the law over the years ...

Following COVID-19 Related Guidance Just Became Easier for Employers

For much of the COVID-19 pandemic, employers have been frustrated by the lack of notice regarding important mandates issues by different public health officials at all levels of state and local government. Senate Bill 336 is designed to make obtaining current information a little easier. 

With the enactment of SB 336, if either the State Department of Public Health or a local health officer issues an order or mandatory guidance related to COVID-19, the respective agency must do the following:

(1) Publish on their internet website the order or mandatory guidance and the date it takes ...

New Law Expands Cal/OSHA’s Enforcement Authority

Senate Bill 606, which becomes effective on January 1, 2022, strengthens Cal/OSHA’s enforcement powers by creating two new categories of Cal/OSHA violations: “enterprise-wide” and “egregious”. A finding of an enterprise-wide violation may result in increased fines and penalties and requirements for abatement across multiple employer worksites, while an egregious violation permits increased fines and penalties per employee, per violation in certain circumstances. The new law also highlights the importance of compliant written health and safety policies.

Senate Bill 762: Another Tall Hurdle for Employers Seeking Arbitration

Since the turn of the century, the judicial and legislative branches in California have added barrier after barrier to employers who have consciously sought arbitration; an oft-stated “preferred” method of resolution. The most draconian of these barriers became effective on January 1, 2020, with the enactment of Code of Civil Procedure § 1281.97 et seq.  These statutes provide that if an employer fails to timely pay the fees for the arbitration, the employee would be entitled to either withdraw the claim from the arbitration and proceed in court or otherwise compel arbitration ...

California Expands Family Leave and Modifies Small Employer Mediation Pilot Program

On January 1, 2022, as a result of Assembly Bill 1033, leave under the California Family Rights Act (CFRA) will be expanded to provide employees with up to twelve weeks of job-protected leave to provide care to a parent-in-law with a serious medical condition.  The CFRA previously only allowed for leave for an employee to care for a child, parent, grandparent, grandchild, sibling, spouse, or domestic partner who has a serious health condition.

AB 1033 also makes changes to the Department of Fair Employment and Housing’s (DFEH’s) small employer family leave mediation pilot ...

Posted in Legal Bites
FDA Issues Final Rule for Lab Accreditation for Food Testing

On December 1, 2021, the U.S. Food and Drug Administration (“FDA”) issued a final rule establishing the Laboratory Accreditation for Analyses of Food (“LAAF”) program.

FDA will utilize the LAAF program to recognize accreditation bodies that will accredit food testing laboratories to specified standards. The final rule outlines eligibility requirements for both accreditation bodies and laboratory facilities. The LAAF program will mark a major shift in food testing, which is currently handled by private laboratories with limited government oversight.

After the LAAF ...

New Law Expands Employer Record Retention Requirements and DFEH Enforcement Powers

Senate Bill 807, which becomes effective January 1, 2022, will extend the period in which employers must retain personnel records for applicants and employees from 2 years to 4 years from the date the records were created or received, or the date the employment action was taken. 

In the event that a complaint with the Department of Fair Employment and Housing (“DFEH”) has been filed against an employer, the employer must retain any related personnel records until the employer has been notified that the action has been fully resolved, or the first date after the period for filing a ...

New Law Permits Emailing of Employment Notices and Postings, But Posting Requirement Remains

Senate Bill 657, a new law which becomes effective on January 1, 2022, in recognition of the prevalence of remote workers during the COVID-19 pandemic, permits employers to email required employment postings to employees. However, the law specifies that such email distribution “shall not alter the employer’s obligation to physically display the required posting.” Thus, notices requiring posting must still be physically displayed in the workplace, in a conspicuous and easily accessible location, such as an employee lunchroom or bulletin board.

Although SB 657 does not ...

California Bans Piece Rate Pay for Garment Workers

On January 1, 2023, Senate Bill 62, the Garment Worker Protection Act, will become effective, making California the first state to ban piece rate pay for garment workers. SB 62 prohibits any “employee engaged in the performance of garment manufacturing” from being “paid by the piece or unit, or by the piece rate.” The law creates a compensatory damages penalty of $200 per employee against a garment manufacturer or contractor, payable to the employee, for each pay period in which each employee is paid by the piece rate. “Garment manufacturing” is defined to include sewing ...

Judge Halts Centers for Medicare and Medicaid Services Rule Requiring COVID-19 Vaccination for Healthcare Workers

In early November the Centers for Medicare and Medicaid Services (CMS) announced that it would be requiring applicable healthcare facilities to have a policy in place ensuring that eligible staff receive their first dose of a COVID-19 vaccine series by December 5, 2021 and to have completed the series by January 4, 2022. The failure to comply with the requirement would place an organization’s Medicare funding in jeopardy. On Tuesday, November 30, 2021, Judge Terry A. Doughty, a United States District Court Judge sitting in Louisiana, issued an injunction stopping enforcement of ...

Posted in Legal Bites
Restrictions on Plastic Utensils Go into Effect for LA Restaurants

On November 15, 2021, a Los Angeles City Council ordinance aiming to drastically reduce single-serve plastic utensils within the city went into effect.

Restaurants with more than 26 employees are required to remove all single-use disposable food-ware dispensers from common areas. Additionally, these restaurants are required to stop including plastic utensils and napkins with takeout orders or for dine-in meals unless customers specifically ask for them. If restaurants use an online ordering platform or third-party food delivery service, they are required to require ...

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