Posts in The Staff Report.
Reminder: Employers Must Use Updated I-9 Form

Despite the U.S. Department of Homeland Security issuing a revised version of Form I-9, Employment Eligibility Verification, last year, many employers continue to use an outdated version of the form. The current version of Form I-9 can be found here.  

Employers must use the revised Form I-9 for all new hires, reverifications and rehires. The changes made to the I-9 form include the reduction of length to one page, more clear instructions, and guidance on acceptable receipts and the auto-extension of some documents, as found on the Lists of Acceptable Documents.

An employer that used an ...

Reminder: California Pay Data Reporting is Due by May 8, 2024

Most private employers with at least 100 employees and federal contractors with at least 50 employees are aware of federal job pay data reporting requirements. Specifically, these employers are required to provide to the Equal Employment Opportunity Commission (EEOC) an EEO-1 Component 1 report that provides employee data from the prior year by employee job category, as well as sex and race/ethnicity. However, these employers may not be aware that California has additional pay data annual reporting requirements which exceed those set forth in the EEO-1 Component 1 ...

Fast Food Council Holds First Meeting

On March 15, 2024, the newly appointed Fast Food Council (the “Council”) held its first public meeting in the State Building in Oakland.

The Council was created as part of Assembly Bill 1228, the FAST Recovery Act. The Council has the power to establish minimum standards for fast food workers, including standards for working hours, working conditions, and health and safety.

The Council is comprised of eleven members, nine voting members and two non-voting members. The members are: Nick Hardeman (Chair), Michaela Mendelsohn, Anneisha Williams, Joe Johal, SG Ellison, Richard ...

California Adds Exemptions to FAST Recovery Act

On March 25, 2024, Governor Newsom signed Assembly Bill 610 into law. AB 610 will exempt some businesses from needing to comply with the Fast Recovery Act. The Fast Recovery Act includes an increase in minimum wage for certain fast food establishment employees which will go into effect next week on April 1, 2024.

More specifically, the FAST Recovery Act sets the minimum wage for fast food workers in chains with more than 60 locations across the country at $20/hour. Approximately 500,000 workers will be affected by the wage increase. In addition to the wage increase, the FAST Recovery Act ...

Local 11 Union Scores Ninth Circuit Win

On February 22, 2024, a panel of judges for the United States Court of Appeals for the Ninth Circuit issued an unpublished opinion upholding enforcement of a National Labor Relations Board (“NLRB”) order holding that a restaurant, Grill Concepts Services, Inc. (“Grill Concepts”) violated the National Labor Relations Act by refusing to bargain in good faith with the UNITE HERE Local 11 union. The panel granted NLRB’s petition for enforcement and denied Grill Concepts’ petition for review.

NLRB alleged that Grill Concepts engaged in a course of bad faith conduct between ...

When Does a “Dispute” Arise Under the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act?

In 2022, Congress enacted the “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act” (the “Act”) which provides that, at the election of the person alleging conduct constituting a sexual harassment dispute or sexual assault dispute, “no predispute arbitration agreement or predispute joint-action waiver shall be valid or enforceable with respect to a case which is filed under Federal, Tribal, or State law and relates to the sexual assault dispute or the sexual harassment dispute.”  (9 U.S.C. § 402).       

The California Court of Appeals recently ...

California Court of Appeals Reinforces Strict Limits on Arbitration Fee Payment Deadline

The California Court of Appeals recently revisited the issue of the draconian deadline for paying arbitration fees established by California Code of Civil Procedure section 1281.97.  In Suarez v. Superior Court of San Diego County, the new twist that prompted appellate court review was that the 30-day grace period to pay the arbitration fees ended on January 1, 2023.  Because January 1, 2023 was a holiday, the employer argued that the arbitration payment deadline was extended by statute under Code of Civil Procedure sections 12 and 1010.6.

More specifically, and among several ...

Trial Courts Do Not Have Authority to Dismiss PAGA Claims for Lack of Manageability

Until recently, California courts were split on whether Private Attorneys General Act (“PAGA”) claims could be dismissed for a lack of “manageability” – referring to the practicality of effectively conducting a trial on the issues.  Like class actions, PAGA actions generally purport to represent a significant number of an employer’s current and former employees.  However, there are important distinctions between class and PAGA actions, which caused California’s appellate courts to issue conflicting opinions on how PAGA cases should be adjudicated.  The ...

Happy Valentine’s Day! A Reminder that Employers Must Notify Employees of Void Non-Compete Clauses and Agreements by February 14, 2024

As part of a focused effort by the California Legislature to protect employees from unenforceable non-compete clauses and agreements and increase fair competition among employers in 2024, Assembly Bill 1076 enacted Business and Professions Code section 16600.1.

In addition to any other Valentine’s Day plans that employers may have, all employers that provided any agreement with an unlawful non-compete clause or otherwise executed an unlawful non-compete agreement with its employees who were employed after January 1, 2022 must provide written notice to each employee or ...

Stand Up and Be Counted! Employee Count Guidance for Statutes Without Express Guidelines

Many California state statutes are applied based on the number of persons employed by an employer employee count.  Unfortunately, there are a number of these laws, including statutes establishing employee leaves of absence requirements, that do not specify which employees must be counted to determine if the law applies to a particular employer.  A recent state guidance regarding the 2023 state pay transparency statute, which requires the inclusion of a pay scale in job postings by employers with at least 15 employees, but which law does not specify who must be included in the count ...

California Enacts Higher Minimum Wage for Health Care Workers

Commencing on June 1, 2024, Senate Bill 525 will raise the minimum wage for covered health care workers at covered health care facilities in California. A “covered health care facility” as further defined by various statutes, is:  a facility or other work site that is part of an integrated health care delivery system; a licensed general acute care hospital; a licensed acute psychiatric hospital; a special hospital; a licensed skilled nursing facility, if owned, operated, or controlled by a hospital or integrated health care delivery system; a patient’s home when health care ...

California Expands Requirements for Successor Grocery Employers

Effective January 1, 2024, California’s Assembly Bill 647 will expand recall rights for grocery workers when there is a change of control in a grocery establishment.  Prior to AB 647, existing law required an incumbent grocery employer to provide, within 15 days of execution of a transfer document, a list of eligible grocery workers. Successor grocery employers were then required to maintain a preferential hiring list of these eligible grocery workers and hire from that list for 90 days. This law did not apply to grocery stores that had ceased operations for 6 months or more before the ...

SB 428 Further Modifies Workplace Violence Restraining Order Law

As reported here, California recently took steps to provide employers additional tools to combat workplace violence, including requiring a written workplace violence prevention plan, by enacting Senate Bill 553.  Effective January 1, 2025, Senate Bill 428 makes further changes to existing procedures for workplace violence restraining orders, and creates limitations to prevent employers from using such orders to restrict labor-related speech and activities. These changes are codified as section 527.8 of the Code of Civil Procedure.

Employers in California may ask for a court ...

California Expands Right to Recall for Hospitality Employees

During the height of the COVID-19 pandemic in 2020, California enacted a temporary right to recall for hospitality employees, codified as Labor Code section 2810.8 (see our related post describing the law here). This law covers laid-off employees who were employed for the 6 or more months preceding January 1, 2020, and whose layoff was due to a reason related to the COVID-10 pandemic. The law was scheduled to expire on December 31, 2024.

Covered employers include hotels with fifty or more guest rooms, airport hospitality operations and service providers, certain event centers, and ...

Some, But Not All, California COVID-19 Laws Will Sunset at the End of 2023

California’s COVID-19 notice requirements under California Labor Code § 6409.6, requiring employer notice to employees of COVID-19 exposures in the workplace, will expire at the end of 2023.

However, although these state notice requirements will expire, under Cal/OSHA’s COVID-19 non-emergency regulations, employers must still notify employees and independent contractors who had a close contact with a COVID-19 case, as well as any employer with an employee who had a close contact, as soon as possible.  Local health department requirements may also apply.

The end of 2023 ...

Civil Rights Council’s Amendment to the Fair Chance Act Increases Employer Obligations

The California Office of Administrative Law approved the California Civil Rights Council’s proposed amendment to the California Fair Chance Act, effective October 1, 2023. In addition to providing employers with further guidance on how to handle job applicants with a criminal history, the amendment also expands which employers and job applicants fall under the scope of the FCA.

Originally enacted in 2018, the FCA aims to remove unnecessary difficulties for individuals with criminal backgrounds to find employment. Specifically, the FCA prohibits an employer with five or more ...

National Labor Relations Board Adopts Stricter Employer Workplace Rule Standard

Under the National Labor Relations Act (NLRA), employees have “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”  In Stericycle, Inc., 372 NLRB No. 113 (2023), the National Labor Relations Board (NLRB) adopted a new, stricter standard for assessing workplace policies for the purpose of protecting these employee rights.  Under the new standard, a work rule is ...

Employers Beware: Equal Employment Opportunity Commission and Department of Labor Agree to Collaborate to Maximize Enforcement of Laws

Earlier this year, the Equal Employment Opportunity Commission (EEOC) and Department of Labor, Wage and Hour Division (WHD) entered into a memorandum of understanding “to maximize and improve the enforcement of” the laws administered by the two agencies.  The purpose of the MOU is to foster better collaboration between the agencies through “information sharing, joint investigations, training, and outreach.”

Taking immediate effect, the organizations have agreed to broader information and data sharing between each other.  Notably, either organization “may share ...

California Amends the Wage Theft Prevention Act to Add Additional Written Notice Requirements for Employees

Since 2011, the Wage Theft Prevention Act has required California employers to provide certain written information to new employees at the time of hiring and within seven days of any change. The Labor Commissioner provides a form Notice to Employee Labor Code Section 2810.5 for this purpose

Beginning January 1, 2024, Assembly Bill 636 will amend Labor Code 2810.5 to require employers to include in the 2810.5 Notice information regarding any federal or state emergency or disaster declaration issued within 30 days before hire that applies to the county or counties in which the ...

Employer Alert: SB 553 Requires Workplace Violence Prevention Plans for Most California Employers by July 1, 2024

Unfortunately, incidents of workplace violence are taking place with increasing frequency.  In an effort to give employers additional tools to combat these issues, the California Legislature has given us Senate Bill 553.  Effective January 1, 2024, SB 553 amends Code of Civil Procedure section 527.8 to permit any employer that employs someone who has suffered unlawful violence or a credible threat of violence from any individual that can reasonably be construed to be carried out or to have been carried out at the workplace to seek a temporary restraining order on behalf of the employee ...

New California Law Protects Victims of Sexual Harassment, Discrimination or Assault From Claims of Defamation

The California Legislature recently passed Assembly Bill 933, a bill expanding privileged speech to expressly include communications regarding factual information pertaining to incidents of sexual assault, harassment or discrimination.

Currently, California statutes list specific types of oral and written communications that are privileged and therefore cannot be the basis for a claim of defamation against the speaker.  Privileged categories include, among other things, statements made in pursuit of a lawsuit or made in the proper discharge of an official duty.  ...

NLRB Issues Rule Expanding Definition of Joint Employer

The National Labor Relations Board recently issued a final rule broadening who may be considered a joint employer of another employer’s employees under the National Labor Relations Act.

Under the former rule, passed in February 2020 during the Trump administration, an entity is considered a joint employer of a separate’s employer’s employees only if the two employers “share or codetermine the employees’ essential terms and conditions of employment, which are exclusively defined as wages, benefits, hours of work, hiring, discharge, discipline, supervision, and ...

California Expands Protections for Employee Conduct

        Employee claims of retaliation in the workplace have been on an upward trend since the California Legislature amended Labor Code section 1102.5 to include protections for whistleblower complaints made directly to a person with authority over the complaining employee or to another employee with authority to investigate the claims alleged.  Senate Bill 497, which goes into effect on January 1, 2024, will serve to permit claims for employees alleging retaliation in the workplace under not only Labor Code section 1102.5, but also sections 98.6 (engaging in protected activity related ...

Appealing A Petition to Compel Arbitration Ruling No Longer Automatically Stays Superior Court Proceedings

            Over the past few years, this blog has followed the California Legislature’s concerted efforts to vitiate employment arbitrations in the state.  Senate Bill 365 is the next in line.  This bill amends Code of Civil Procedure section 1294(a) to state that, while an aggrieved party may appeal from an order dismissing or denying a petition to compel arbitration, “the perfecting of such an appeal shall not automatically stay any proceedings in the trial court during the pendency of the appeal.” (Emphasis added). 

            Although a small change to a short statute, the effects may be ...

California Enacts Further Protections for Marijuana-Using Workers and Job Applicants

Passed in 2022 and effective January 1, 2024, Assembly Bill 2188 creates Government Code section 12954 to make it unlawful for an employer to discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalizing a person, for either:

(1) The person’s use of cannabis off the job and away from the workplace; or

(2) An employer-required drug screening test that has found the person to have nonpsychoactive cannabis metabolites in their urine, hair, blood, urine, or other bodily fluids.

Now Senate Bill 700, which will also become effective ...

California Employers Must Pay for Food Handler Card and Training

On October 8, 2023, California Governor Gavin Newsom signed Senate Bill (“SB”) 476. The law will go into effect on January 1, 2024.

Employees of retail food facilities are already required to obtain a food handler card and maintain that card for the duration of their employment. SB 476 requires employees to compensate the training and food handler examination time as “hours worked” for which the employer would pay. Employers must also reimburse the employee for all costs associated with obtaining a food handler card. Lastly, employers must relieve the employee of all other ...

California Creates Employee Right to Reproductive Loss Leave

California Senate Bill (“SB”) 848, which becomes effective on January 1, 2024, entitles employees to five days of leave following a reproductive loss event. SB 848 adds section 12945.6 to the Government Code and applies to employers with five or more employees. Employees are eligible for the leave if they have worked for the employer for at least 30 days before suffering the reproductive loss.

SB 848 defines “reproductive loss event” as “the day or, for a multiple-day event, the final day of a failed adoption, failed surrogacy, miscarriage, stillbirth, or an unsuccessful ...

California Enacts Additional Restrictions on Employer Noncompete Agreements

          The California Legislature has sought in recent years to expand the rights of employees in nearly every facet of business in California.  Employer restrictions on an employee’s ability to work in the same industry after employment ends have been no exception.  As a result of the 2023 legislative term, two bills limiting post-employment restrictions on employees. In addition to Senate Bill 699, which voids noncompete agreements of out-of-state employee seeking work in California, Assembly Bill 1076 was signed into law. 

            AB 1076 amends Business Code Section 16600 and creates ...

California Increases Paid Sick Leave for Employees

Senate Bill 616, which was signed into law by Governor Newsom this month, amends existing law regarding paid sick leave to California employees. 

The Essentials:

Beginning January 1, 2024 –

  • The number of paid sick days per year will be increased to 40 hours or 5 days, whichever is greater (increased from 24 hours or 3 days).
  • Employers may cap an employee’s use of paid sick leave to 40 hours or 5 days in each year of employment, calendar year, or 12-month period (increased from 24 hours or 3 days).
  • Employers may cap paid sick leave carryover accrual at 80 hours or 10 days, whichever is greater ...
California Enacts Fast Food Bill with $20 Minimum Wage

After years of debate, and a looming referendum, a compromise between labor and business representatives has resulted in a final law regulating the fast-food industry. On September 28, 2023, California Governor Gavin Newsom signed Assembly Bill (“AB”) 1228 into law. AB 1228 is a compromise version of the Fast Food Accountability and Standards Recovery Act, a law that initially became effective on January 1, 2023, but them became the subject of a referendum which halted enforcement.  Now that AB 1228 has been enacted, the referendum on the Fast Food Accountability and Standards ...

­California Opens its Doors to Commerce by Voiding Out-Of-State Non-Compete Agreements

You may have heard the half-serious joke that California acts as its own independent country.  One example of this is California’s strong disfavor of non-compete agreements, which stands in contrast with the rest of the country which permits these agreements to varying degrees.

California has leaned further into its famed independence with the passage of Senate Bill 699, which will go into effect on January 1, 2024.  SB 699 seeks to strengthen California’s existing ban against non-compete agreements set forth in Business and Professions Code section 16600 which simply states ...

California Minimum Wage Increases

What goes up continues to go up!  As we pointed out here last year, the trend of increasing the minimum wage continues, as follows:

State:

On January 1, 2024, the California state minimum wage will increase from $15.50 per hour to $16.00 for employers of all sizes, reflecting a 3.5% increase, which is based on the expected rate of inflation.  The state minimum wage also governs the exempt employee threshold salary, which will increase accordingly.  The new minimum salary for employees who otherwise qualify to be exempt from overtime will be $66,560 annually for employers of all sizes.

Compromise Reached on FAST Act

On September 11, 2023, industry, government, and union representatives announced that they had reached a deal to remove a California referendum on the Fast Food Accountability and Standards (“FAST”) Recovery Act from the 2024 ballot. The Fast Act has a storied history, commencing with legislation which was scheduled to take effect on January 1, 2023, which prompted a responsive referendum and legal action.    

The compromise bill, Assembly Bill (“AB”) 1228 will increase the minimum wage for fast food workers in the state to $20 an hour in April 2024 if the fast food chain has more ...

Los Angeles Enacts Freelance Worker Protections Ordinance

With the stated purpose of providing protection to freelance workers who may struggle to receive timely and full payment for their services, the city of Los Angeles has established an ordinance which will require hiring entities to have a written contract with any freelance worker for services valued at $600 or more in a calendar year.  Titled the “Freelance Worker Protections Ordinance”, the legislation establishes specific rights and remedies for freelance workers which could prove costly to uninformed employers. 

As defined by the ordinance, a “hiring entity” is any ...

Ninth Circuit Broadly Interprets Exemption under Federal Arbitration Act for Transportation Workers

On July 21, 2023, the United States Court of Appeals for the Ninth Circuit affirmed a district court order denying Domino Pizza’s motion to compel arbitration in a putative class action brought by plaintiff Dominos truck drivers who alleged that Domino’s had violated California labor law.

The decision in Carmona v. Domino’s Pizza, No. 21-55009 involved an analysis of the Federal Arbitration Act. A Ninth Circuit panel had previously affirmed the denial of the motion to compel, but the United States Supreme Court granted certiorari, vacated the panel’s decision and remanded ...

California Supreme Court Rules that PAGA Claims May Be Pursued in Court Despite Arbitration Agreement

Following the United States Supreme Court’s landmark ruling in Moriana v. Viking River Cruises, California courts were tasked with the open question of whether an “aggrieved” employee whose individual Private Attorneys General Act (PAGA) claims are subject to an arbitration agreement has standing to represent other similarly aggrieved employees in Superior Court.  In Adolph v. Uber Technologies, Inc., the California Supreme Court answered that question in the affirmative; a representative employee’s standing to represent others is not affected by any existing ...

California Appellate Court Holds that Employers Must Reimburse Work-from-Home Expenses During COVID Lockdown

The Court of Appeal of the State of California recently held in Thai v. IBM, A165390, that employers are obligated to reimburse expenses incurred by employees working from home if those expenses are a consequence of the employee’s job duties, even if those expenses were caused by state stay-at-home COVID orders rather than by the employer.

Plaintiff Paul Thai (“Thai”) is a former IBM employee whose regular job duties required internet access, telephone service, a computer, and a headset. On March 19, 2020, California Governor Gavin Newsom signed Executive Order N-33-20 (the ...

Supreme Court Unanimously Approves Higher Standard for Religious Accommodations Under Title VII

On June 29, 2023, the Supreme Court of the United States unanimously held in Groff v. DeJoy, No. 22-174, that Title VII of the Civil Rights Act of 1964 (“Title VII”) requires an employer that denies a religious accommodation to show that the burden of granting an accommodation would result in substantial increased costs that would affect the conduct of the employer’s business.

U.S. Post Office employee Gerald Groff is an Evangelical Christian who believes that Sunday should be devoted to worship and rest.  Groff had been a USPS employee since 2012. At the time he started, the USPS ...

Federal Pregnant Workers Fairness Act Now Effective

On June 27, 2023, the federal Pregnant Workers Fairness Act (“PWFA”) went into effect.  The law requires employers with 15 or more workers to provide “reasonable accommodations” to a worker’s known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer an “undue hardship.”

The PWFA does not replace federal, state, or local laws that are more protective of workers affected by pregnancy, childbirth, or related medical conditions. These laws have been passed in approximately 30 jurisdictions ...

FTC Proposes Ban on Fake Reviews and Testimonials

On June 30, 2023, the Federal Trade Commission (“FTC”) announced that it would be publishing a notice of proposed rulemaking on the use of consumer reviews and testimonials.

The proposed rule follows FTC’s November 2022 Advance Notice of Proposed Rulemaking. The FTC voted 3-0 to approve the notice of proposed rulemaking, which will be published in the Federal Register and open to public comment.

Specific practices that would be prohibited under the proposed rule and subject to FTC fines or enforcement action include:

  • Selling or Obtaining Fake Consumer Reviews, Consumer ...
Ninth Circuit Clarifies Standard for “Client Employer” Liability

On June 1, 2023, a panel of judges for the United States Court of Appeals for the Ninth Circuit held that berry distributors were not liable as “client-employers” of agricultural workers. The plaintiff agricultural workers had been hired by strawberry growers to pick fruit that was then turned over to defendants Red Blossom Sales, Inc. and Better Produce, Inc. for distribution.

In 2018, the strawberry growers stopped paying the plaintiff agricultural workers and filed for bankruptcy. The plaintiffs then sued the distributor defendants as joint employers and client ...

Employer Alert: Local Minimum Wage Increases on July 1, 2023

On July 1, 2023, a number of local municipalities and the County of Los Angeles will be raising their hourly minimum wage, based on changes to the consumer price index, and as required by local minimum wage ordinances. Beginning July 1, 2023, the following increases will apply to employers in the designated areas:

In addition, on July 1, 2023, all businesses in the City of West Hollywood, including smaller businesses and hotel employers, will be required to raise the hourly minimum wage to $19.08.  In the past several years, the City of West Hollywood’s minimum wage and corresponding ...

Uber Drivers Cannot Bring Class Action for Employment Claims

In a matter of first impression, a panel for the Third U.S. Circuit Court of Appeals recently affirmed a judgment of the District Court of New Jersey in Singh v. Uber Techs., Inc. (April 26, 2023), compelling arbitration in a putative class action against Uber Technology, Inc. (Uber). The class action was brought against Uber by its drivers who alleged that the rideshare company misclassified them as independent contractors, thereby depriving them of overtime pay and other benefits under wage and hour laws. The panel held that the drivers must bring work-related disputes as ...

California Court of Appeals Holds that Joint Employers Must Sign Arbitration Agreement

In law school, aspiring attorneys are taught fundamental concepts related to contracts, including “agency”, “third party beneficiary”, and “equitable estoppel”, terms which relate to determining who should be subject to the terms of a contract.  In Hernandez v. Meridian Management Services, LLC, the California Court of Appeals referred back to these law school basics in denying a motion to compel arbitration brought by a number of companies who were alleged to be “joint employers” of an employee, but who were not signatories to an arbitration agreement between ...

After Pushback, LA Revises “Al Fresco” Dining Ordinance to Lower Cost and Streamline Approval Process

On April 7, 2023, the City of Los Angeles (the “City”) released a revised “LA Al Fresco Ordinance,” to govern outdoor dining.  The City had previously released a February 2023 proposed ordinance that was met with intense opposition from restaurant owners and community members.

“LA Al Fresco” is a popular outdoor dining program that began in May 2020 during the COVID-19 pandemic in an effort to help restaurant owners use more space for outdoor dining without having to go through a prolonged approval process.  Through the program, restaurants and bars could apply to expand ...

Court Rules Outside Salesperson Exemption Turns on Employer Control

Until recently, employers had the luxury of interpreting the outside salesperson exemption to minimum wage, overtime and meal and rest period requirements at face value.  This is because the definition of an “outside salesperson” is simply codified as “any person, 18 years of age or over, who customarily and regularly works more than half the working time away from the employer’s place of business selling tangible or intangible items or obtaining orders or contracts for products, services, or use of facilities.” 

However, in Espinoza v. Warehouse Demo Services, Inc.

California Court of Appeals Rules that Proposition 22 is Constitutional…Mostly…For Now

In the 2020 general election, Californians passed Proposition 22, which gave ride-sharing and delivery app companies such as Uber, Lyft, and DoorDash the ability to continue classify their drivers as independent contractors.  Shortly after the proposition passed, a group of drivers challenged its constitutionality.  At its core, the issue is whether drivers in the gig economy should be entitled to the benefits typically afforded to employees.  As independent contractors, these workers forgo such benefits in exchange for the right to set their own work schedule and receive ...

NLRB Declares Confidentiality and Non-Disparagement Provisions in Severance Agreements Unlawful

Over the last few years, employers throughout the United States have enjoyed some measure of protection from former employees who signed severance agreements.These agreements routinely contained a confidentiality provision that restrains former employees from disclosing the contents of the agreement to third parties other than (1) a spouse; (2) professional advisors for the purposes of obtaining legal counsel or tax advice; or (3) if legally compelled to do so by a court or administrative agency of competent jurisdiction.  These agreements also typically contained a ...

Arbitration Agreements Can Be A Condition of Employment Once Again

The saga of challenges to mandatory employment arbitration agreements is almost over. After three years of challenges, the United States Chamber of Commerce successfully appealed the enactment and enforcement of California’s Assembly Bill 51 (“AB 51”), which was originally intended to take effect on January 1, 2020. This piece of legislation would have banned the use of mandatory arbitration agreements as a condition of employment, and went so far as to include civil and criminal penalties on employers who violated the statute. 

After a federal district court granted a ...

A Reminder: The IRS Mileage Rates Have Changed

The 2023 mileage rates used to calculate the deductible costs of operating an automobile for business, charitable, medical, or moving purposes have increased or remained unchanged from mid-year changes in 2022, when rates were last modified. Specifically, as of January 1, 2023, the standard mileage rates for the use of a car (also vans, pickups or panel trucks) are:

  • 65.5 cents per mile driven for business use, up three cents from the rate for the latter half of 2022;
  • 22 cents per mile driven for medical, or moving purposes for active duty members of the Armed Forces, unchanged from the ...
Court Puts FAST Act on Hold Pending Referendum

On January 13, 2023, Sacramento Superior Court Judge Shelleyanne Chang ruled that implementation of the Fast Food Accountability and Standards Recovery Act (“FAST Act”) should remain on hold pending the Secretary of State’s quality control process to review petition signatures.  In so doing, the Court held that “[c]ase law is clear that a qualified referendum pending vote by the people in a general election suspends the effectiveness of a law before it takes effect” and noted that there was no authority to support the Department of Industrial Relation’s position that ...

California Expands Restroom Access

California retail businesses must prepare to open employee-only restrooms to members of the public to accommodate medical conditions including Crohn’s disease, ulcerative colitis, other inflammatory bowel disease, and irritable bowel syndrome.

On September 30, 2022, California Governor Gavin Newsom signed Assembly Bill 1632 into law. This bill requires a place of business that is open to the general public for the sale of goods and that has a toilet facility for its employees to allow any individual who is lawfully on the premises of that place of business to use that toilet ...

Employer Alert:  AB 2068 Requires Cal/OSHA Postings in Multiple Languages

Effective January 1, 2023, AB 2068 provides that employers posting a Cal/OSHA citation, special order or action must post the Cal/OSHA English version of the notice, along with multiple language versions of the notification that Cal/OSHA will have prepared, as applicable to the workplace. 

Cal/OSHA is required to prepare these notifications in English and the top seven non-English languages used by limited-English-proficient adults in California, as determined by the U.S. Census Bureau’s American Community Census, which are currently Spanish, Cantonese, Mandarin ...

Court Order Puts FAST Act on Hold

On December 30, 2022, Judge Shelleyanne Chang of the Superior Court of Sacramento issued a temporary restraining order to block adoption of the FAST Act, which was due to take effect on January 1. 

The Save Local Restaurants coalition of restaurant industry advocates filed a voter referendum on September 7, 2022 to block the new law, and appear to have gathered enough signatures to put the law on the November 2024 ballot. Despite the referendum, the California Department of Industrial Relations stated on December 27 that it would move forward with implementation of the FAST Act on ...

Employer Alert: SB 731 Will Expand Sealing of Criminal Records

Beginning July 1, 2023, SB 731 will provide for the automatic sealing of certain felony criminal records.  Arrests that do not result in conviction will also be sealed. This law also permits individuals with violent or serious felony records to petition courts to order their criminal records sealed.  Sealing of these records will make them unavailable to most employers through a background search, although school districts may still access these records for teacher credentialing or employment decisions.

Under SB 731, most defendants convicted of a felony are eligible to have their ...

Cal/OSHA Establishes Non-Emergency COVID-19 Preventive Regulations

Faced with the expiration of its COVID-19 Emergency Temporary Standards, Cal/OSHA voted to establish non-emergency standards. Once approved by the Office of Administrative Law, which is expected to take place in January of 2023, the new standards will remain in place for two years and will apply to most workers in California who are not covered by the Aerosol Transmissible Diseases standard. 

The regulations continue several key ETS requirements, including complying with California Department of Public Health rules regarding face coverings, and providing respirators to ...

California Prohibits Discrimination Due to Reproductive Health Decisionmaking

In response to recent Supreme Court decisions and laws in other states outlawing abortion, California passed a number of new laws designed to protect reproductive rights in the state. These include bills to prohibit a person from being criminally or civilly liable for a pregnancy loss, to prohibit a health care provider from releasing medical information on abortion care in response to out-of-state subpoenas, and to prohibit law enforcement cooperation with out-of-state entities related to a lawful abortion. California voters also approved Proposition 1 in November, which ...

California Expands Hotel Liability for Knowledge of Human Trafficking

California law already requires hotels to provide training to their staff on how to recognize human trafficking and how to report suspected trafficking to either law enforcement or the National Human Trafficking Hotline. Effective January 1, 2023, Assembly Bill (“AB”) 1788, codified as section 52.65 of the Civil Code, creates new civil liability for hotels for the failure of supervisory employees to report sex trafficking activity. 

Specifically, a hotel is liable under AB 1788 if sex trafficking activity occurred in the hotel and a supervisory employee of the hotel either ...

Employer Alert: The U.S. Equal Employment Opportunity Commission and the California Civil Rights Department Issue Updated Mandatory Posters

The United States Equal Employment Opportunity Commission (EEOC) has released an updated “Know Your Rights: Workplace Discrimination is Illegal” poster that must be prominently displayed in the workplace. The poster summarizes various employee and applicant anti-discrimination protections that the EEOC enforces and also provides instructions on filing a workplace discrimination charge with the EEOC which include a QR code for quick digital access.  

The “Know Your Rights: Workplace Discrimination is Illegal” poster is available in English and Spanish:

FAST Act Referendum Moves Forward; Putting Law on Hold

California‘s FAST Recovery Act will likely be placed on hold until November 2024. 

The Save Local Restaurants coalition, a group composed of restaurant industry advocates, filed a voter referendum on September 7, 2022 to block the new law. California’s referendum process provides that opponents have 90 days from the date of a bill’s enactment to qualify a measure for the ballot by collecting enough signatures. Specifically, the group had until December 5, 2022 to submit 623,000 signatures in order for the law to be placed on the ballot.  Save Local Restaurants issued a statement

California Will Create a Pilot Program Recognizing Businesses That Create Safe and Welcoming Environments

Governor Newsom signed Assembly Bill 2448 into law, which will enact Civil Code section 51.17. The law requires the Civil Rights Department (formerly the Department of Fair Employment and Housing) to establish a pilot program to recognize businesses that promote or create environments free from discrimination and harassment of customers.  Recognition will come in the form of a certificate the department would issue to qualifying businesses that may be prominently displayed on site. The department would also publish on its internet website a list of businesses receiving the ...

LA City Council Passes “Fair Work Week” Ordinance

On November 22, 2022, the Los Angeles City Council passed the Fair Work Week ordinance (the “Ordinance”). The Ordinance passed with a 10-0 vote, and will go into effect on April 1, 2023. Covered employers subject to the requirements of the Ordinance are retail businesses with 300 or more employees globally, regardless of how many employees are based in Los Angeles.

The Ordinance requires covered employers to provide employees who work at two hours a week within the City of Los Angeles with written notice of their work schedules at least fourteen calendar days before the start of the ...

Employers Beware: SB 1044 Creates a Right to Refuse to Work in Emergency Conditions

Effective January 1, 2023, Senate Bill 1044 will prohibit employers from taking or threatening adverse action against any employee for refusing to report to, or leaving, a workplace or worksite during an “emergency condition” when the employee has a reasonable belief that the workplace or worksite is unsafe.  An “emergency condition” means the existence of either: (1) conditions of disaster or extreme peril to the safety of persons or property at the workplace or worksite caused by natural forces or a criminal act; or (2) an order to evacuate a workplace, a worksite, a ...

California Minimum Wage and Salary Exemption Threshold Increases for 2023

What goes up does not come down! The trend of increasing the minimum wage continues in 2023 as follows:

State:

On January 1, 2023, the California state minimum wage will increase to $15.50 per hour for employers of all sizes. The state minimum wage also governs the exempt employee threshold salary, which will increase accordingly.  On January 1, 2023, the new minimum salary for employees who otherwise qualify to be exempt from overtime will be $64,480 annually for employers of all sizes.

Local:

Additionally, several California municipalities will raise their minimum wage rates on July ...

Employer Alert: SB 951 Will Increase Paid Family Leave and State Disability Benefits

Beginning January 1, 2025, Senate Bill 951 will increase from 60% to a maximum of 90% the percentage of wage replacement based on the individual’s wages earned for persons receiving benefits under the Paid Family Leave (PFL) and State Disability Insurance (SDI) programs for claims filed on or after that date. To pay for this increase in benefits, on January 1, 2024, SB 951 will repeal the wage ceiling for contributions into the SDI fund, thereby making all wages subject to the SDI contribution rate.

Employees can apply for PFL or SDI benefits, as applicable, during an otherwise unpaid ...

New Employment Law Expands Required CalSavers Retirement Savings Program

Effective January 1, 2023, Senate Bill 1126 expands California’s CalSavers Retirement Savings Program by requiring employers with at least one employee to register for CalSavers by December 31, 2025, if the employer does not sponsor a retirement plan for its employees, or register as exempt if a retirement plan is provided.  Any employer may also choose to have a payroll deposit retirement savings arrangement (such as an IRA) to allow employee participation in the program.  However, SB 1126 excludes from the definition of “eligible employer” any sole proprietorships ...

California Employers Must Prepare for Pay Scale Disclosures in 2023

On September 27, 2022, Governor Newsom signed Senate Bill (SB) 1162, which requires employers with more than 15 employees to post salary scales with every job posting and to disclose the pay scale for a position held by an employee upon request, and expands pay data reporting requirements for employers with 100 or more employees.

The law will go into effect on January 1, 2023.

Pay Scale Disclosure in Job Postings and Upon Request

Under existing California law, which went into effect in January of 2018, employers were required to disclose the pay scale of any open position to any applicant ...

When Substantial Compliance Is Not Enough: A Cautionary Ruling For Employment Arbitration Actions

Since its enactment in 2020, employers have been forced to be mindful of the burdensome imposition of Code of Civil Procedure section 1281.97 et seq., which requires an employer to pay the full amount of arbitration fees within 30 days of an arbitrator’s invoice being due, unless the arbitration agreement specifies a different deadline. In a recent opinion titled Espinoza v. Superior Court, the Court of Appeals clarified that this deadline must be strictly followed and there is no leeway for “substantial compliance.” 

In Espinoza, a defendant employer failed to pay the ...

New Law Requires Bereavement Leave in California

Effective January 1, 2023, under Assembly Bill 1949, which amends the California Family Rights Act (CFRA), California employers with at least five employees must provide up to five days of bereavement leave to an eligible employee upon the death of a family member.  To be eligible for the leave, the employee must have completed at least 30 days’ service prior to the leave.  “Family member” means a spouse or a child, parent, sibling, grandparent, grandchild, domestic partner, or parent-in-law. 

The leave is unpaid, but the employee may elect to use available vacation, personal ...

Just When You Thought It Was Over: New Covid Laws For California Employers

With the relaxation of some governmental COVID-19 measures, it may appear that employers need no longer be concerned with any of the requirements imposed in the last two years.  On the contrary, the California Legislature has created a number of new COVID-19-related laws that may California Employers: 

  • Assembly Bill 152 extends COVID-19 Supplemental Paid Sick Leave (SPSL), which had been set to expire on September 30, 2022, to December 31, 2022. That means that California employers with at least 26 employees must continue to provide, under specified COVID-19-related ...
FTC Issues Policy Statement on Gig Work

On September 15, 2022, the Federal Trade Commission (“FTC”) issued a Policy Statement on Enforcement Related to Gig Work (the “Policy Statement”).

The agency’s press release states: “American workers deserve fair, honest, and competitive labor markets. Over the past decade, internet-enabled “gig” companies have grown exponentially, and gig work now composes a significant part of the United States economy. One study suggests the gig economy will generate $455 billion in annual sales by 2023. The rapid growth of the gig economy is made possible by the ...

Are You High?! AB 2188 Seeks To Protect Marijuana Users In The Workplace  

Assembly Bill 2188 has been sent to Governor Newsom for signature. If signed, AB 2188 will serve to further protect workers who use marijuana when off work from discrimination in the workplace. Specifically, AB 2188 will make it unlawful for an employer to discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalizing a person, for either:

(1) The person’s use of cannabis off the job and away from the workplace; or

(2) An employer-required drug screening test that has found the person to have nonpsychoactive cannabis ...

California Court of Appeals Provides Guidance on Wage Order Seating Requirements

Among other protections and rights, employees are entitled to the use of suitable seats when the “nature of the work reasonably permits the use of seats” pursuant to the Industrial Welfare Commission’s Wage Orders. As recently as 2016, the California Supreme Court detailed a fact-intensive framework and multi-factor test to assist employers with the determination of when the nature of the work permits the use of seats.  However, the question of how to determine whether an employee was in fact “provided” suitable seating by his or her employer remained unresolved.

Update: Challenge to California’s Arbitration Agreement Law Marches On

Employers throughout California have been keenly awaiting the final decision from the 9th Circuit Court of Appeals regarding the United States Chamber of Commerce’s challenge to California Labor Code section 432.6, which is designed to prohibit employers from enforcing mandatory arbitration agreements or requiring them as a condition of employment.

In our last report, the 9th Circuit was awaiting the decision from the United States Supreme Court in the Moriana v. Viking River Cruises case, which also addressed the applicability of the Federal Arbitration Act’s ...

Another Minimum Wage Increase? There’s a Referendum for That

As we reported on June 30, 2022, the Los Angeles City Council voted unanimously to adopt a Healthcare Workers Minimum Wage Ordinance, which was designed to increase the minimum wage for workers of private healthcare facilities in Los Angeles to $25.00 per hour (the “ LA Ordinance”). The Ordinance would have gone into effect on August 13, 2022, but for a referendum petition against the ordinance filed on August 10, 2022. Similar ordinances have been passed in Long Beach, Monterey Park, and Downey. Like the LA Ordinance, the ordinance in Downey is also the subject of a referendum.

As a ...

LA City Council Puts Controversial Homeless Hotel Measure on March Ballot

In a move that has hospitality industry leaders expressing concerns about safety and a negative effect on tourism, on August 5, 2022, the Los Angeles City Council considered a proposal that would force hotels to rent vacant rooms to homeless people in exchange for government vouchers.

The ordinance was proposed by UNITE HERE Local 11, a labor union representing workers employed in hotels, restaurants, airports, sports arenas, and convention centers.  The ordinance began as an initiative petition and was secured by enough signatures to require the Council to vote on the measure.  The ...

Los Angeles Enacts Hotel Worker Protection Ordinance

On July 8, 2022, Mayor Eric Garcetti signed the City’s new Hotel Worker Protection Ordinance (“the Ordinance”) into law. The Ordinance was passed by the City Council on June 28, 2022. It will go into effect 30 days after Mayor Garcetti’s signature, on August 8, 2022.

The Ordinance is similar to hotel ordinances recently passed in Long Beach, Santa Monica, Glendale and West Hollywood, which were also pushed forward and drafted by the Unite Here Local 11 union. As part of an effort to raise its profile and further union organizing efforts, the union drafted the Ordinance as an ...

BREAKING NEWS: Los Angeles City Council Increases Minimum Wage For Healthcare Workers 

On June 29, 2022, the Los Angeles City Council voted unanimously to adopt a Healthcare Workers Minimum Wage Ordinance (the “Ordinance”).  This comes after a 10-2 vote on June 21 required a second reading and vote. The Ordinance was initially submitted as an initiative petition to the City Clerk with voter signatures in May 2022.  Under the Ordinance, covered healthcare workers must be paid a minimum wage of $25/hour beginning on the effective date of the Ordinance. On January 1, 2024, the minimum wage will be further increased based on the Consumer Price Index for the Los Angeles ...

Employer Alert:  IRS Mileage Rates Will Increase on July 1st

Effective July 1, 2022, the mileage rates used to calculate the deductible costs of operating an automobile for business, charitable, medical, or moving purposes will increase. 

In a rare move,  the IRS made this special adjustment for the final months of 2022 in recognition of recent gasoline price increases.  The IRS normally updates the mileage rates once each year in the fall for the next calendar year.  The last time the IRS made such a midyear increase was in 2011. 

Specifically, the new standard mileage rates for the use of a car (also vans, pickups or panel trucks) will be:

  • 62.5 cents per ...
Employer Alert: Local Minimum Wage Increases on July 1st

On July 1, 2022, a number of local municipalities will be raising their hourly minimum wage, based on changes to the consumer price index, and as required by their minimum wage ordinances. 

Beginning July 1, 2022, the following increases will apply to all employers in the designated areas:

Municipality

Current Minimum Wage

Increased Minimum Wage on
July 1, 2022

City of Los Angeles

$15.00

$16.04

County of Los Angeles (unincorporated areas)

$15.00

$15.96

City of Pasadena

$15.00 $16.11

City of Santa Monica

$15.00 $15.96

Additionally, on July 1, 2022, businesses in the City of West ...

United States Supreme Court Overrules Ban on PAGA Arbitrations

Private Attorneys General Act (“PAGA”) actions are the proverbial boogeyman to California employers.  On June 15, 2022, the United States Supreme Court reined in some of this statute’s bite by holding that “aggrieved employees” who signed arbitration agreements governed by the Federal Arbitration Act (“FAA”) cannot split their individual claims and their PAGA claims by proceeding with arbitration for the former and a court action for the latter.  An enforceable arbitration agreement will cover all claims, including PAGA claims, raised by the representative ...

Mandatory Responsible Beverage Service Training Requirements Begin July 1, 2022

On July 1, 2022, the Responsible Beverage Service Training Program Act (Assembly Bill 1221) will go into effect.  This means that Responsible Beverage Service training for alcohol servers and their managers at California Department of Alcoholic Beverage Control (“ABC”) On-Premises licensed establishments will go from being voluntary to mandatory.

AB 1221 was passed in 2017, and required ABC to create a Responsible Beverage Service Training Program (“RBSTP”) to ensure servers of alcoholic beverages and their managers are educated on the dangers of serving alcohol to ...

California’s Supreme Court Declares Meal and Rest Period Premiums are “Wages”

In the words of Tom Cruise’s character Lt. Daniel Kaffee in A Few Good Men, “the hits keep on coming.” This quote crystallizes how California employers will undoubtedly feel following the California Supreme Court’s ruling in Naranjo v. Spectrum Security Services, Inc., decided on May 23, 2022.

Initially decided by the Second Appellate District in 2019, Naranjo previously stood for the proposition that failure to provide missed meal and rest break premium pay did not entitle employees to pursue waiting time penalties under Labor Code section 203 or paystub violation ...

California Minimum Wage Will Increase to $15.50

On May 12, 2022, Governor Gavin Newsom announced that California’s minimum wage is projected to increase to $15.50 per hour for all workers beginning on January 1, 2023. The accelerated increase is required by Section 246 of the California Labor Code, which was enacted in April 2016 through Senate Bill 3. That law provides that the minimum wage will increase according to a specified schedule when inflation exceeds 7 percent. Newsom’s press release states that “[t]he COVID-19 pandemic has resulted in persistent supply chain disruptions and labor market frictions have driven ...

Employer Alert:  DFEH Updates Required Employment Posters and Pamphlets

The California Department of Fair Employment and Housing (DFEH) has updated a number of posters and pamphlets that California employers must post or distribute to employees. Employers should take note to use the most recent versions of these required documents.

All California employers are required to display the following poster, which was recently updated:  California Law Prohibits Workplace Discrimination and Harassment (PDF)

Additionally, California employers with at least five employees must display these three other posters, which were also recently updated:

    Cal/OSHA Standards Board Adopts New COVID-19 Prevention Emergency Temporary Standards

    On April 21, 2022, the Cal/OSHA Standards Board (Board) met and formally adopted a third version of the COVID-19 Emergency Temporary Standards (ETS) by a vote of 6-1.  

    The new ETS makes a number of changes to prior ETS rules, including: the significance of vaccination status, face-covering standards; testing requirements; cleaning and disinfection requirements; and the guidelines to follow for exclusion from and returning to work criteria.

    Vaccination status is no longer an aspect of the ETS, even in the event of a COVID close contact in the workplace. In fact, the definition of ...

    LA County Public Health Order Requires Continued Masking on Public Transit

    On April 21, 2022, the Los Angeles County Department of Public Health issued a Health Officer Order to note that masking in all public transit within LA County and in LA County indoor transportation hubs continues to be required.

    Per the revised Order, masking continues to be required to be worn by everyone, 2 years of age and older, regardless of their COVID-19 vaccination status, on public transit within the County. This includes wearing masks on commuter trains, subways, buses, taxis, and ride-shares.

    Masking is also required in indoor transportation hubs including airport and bus ...

    Cal/OSHA Standards Board Planning to Adopt New COVID-19 Prevention Emergency Temporary Standards

    The Cal/OSHA Standards Board has scheduled a meeting for April 21, 2022, to adopt a third version of the COVID-19 Emergency Temporary Standards (ETS). The proposed changes will serve to modify several portions of the ETS, including: face-covering standards; testing requirements for individuals returning to work after testing positive and not developing any symptoms; employer testing requirements; cleaning and disinfection requirements; and the guidelines to follow for exclusion from and returning to work criteria. If passed, the third readoption would be the final version ...

    Supreme Court Hears Oral Argument on Arbitrability of California's Private Attorneys’ General Act Under Federal Arbitration Act

    Since the California Supreme Court’s ruling in Iskanian v. CLS Transportation Los Angeles, LLC in 2014, it has been widely understood that Private Attorneys’ General Act (“PAGA”) actions cannot be subject to employment arbitration agreements. The rationale for this decision has been that PAGA actions are unique in that the employee that brings the claim is not acting in an individual capacity, but rather acts as a representative for the Attorney General on behalf of the State of California.  For that reason, the Federal Arbitration Act (FAA), which would otherwise preempt ...

    LA Drops Proof-of-Vaccine Requirements

    On March 30, 2022, the Los Angeles City Council voted 13-1 to end the City’s mandate requiring customers to show proof of COVID-19 vaccination to use indoor facilities at restaurants, bars, gyms, personal care establishments, and entertainment facilities. The ordinance passed with an urgency clause, so it will go into effect as soon as it is signed by the mayor.  Individual businesses are still permitted to voluntarily require proof of vaccination if they choose to do so. The SafePassLA program mandating proof of vaccination has been in effect since November 8, 2021. Los Angeles ...

    LA City Council Takes First Step to End Proof-of-Vaccine Requirements

    On March 9, 2022, the Los Angeles City Council held a special meeting to discuss amending the City’s proof-of-vaccine requirement. The Council voted to direct the City Attorney to prepare a new ordinance making the verification of vaccine cards voluntary for covered locations and removing the requirement for large outdoor events.  Covered locations include restaurants with indoor dining, gyms, personal care establishments, and entertainment and recreation facilities.  The motion passed 12-0, with 3 absent members.  The Council did not hold a discussion on this matter before ...

    The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 is Now Law

    President Biden has signed H.R.4445, known as the “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021”, into law. The law amends the Federal Arbitration Act to state that, at the election of the person alleging conduct constituting sexual harassment or sexual assault, or the named representative of a class or in a collective action alleging such conduct, no predispute arbitration agreement or predispute joint-action waiver will be valid or enforceable with respect to such cases as filed under federal, tribal, or state law. The law further provides ...

    LA County Relaxes Mask Mandate and Proof-of-Vaccine Requirements

    On March 4, 2022, Los Angeles County’s revised Public Health Order (the “Order”) went into effect, significantly relaxing masking rules and indoor proof-of-vaccine requirements.  As of March 3, 2022, Los Angeles County’s case and test positivity rates and hospitalizations had declined to a “Low” level, which prompted the change. 

    Masks are strongly recommended, but no longer required in indoor public settings and businesses.  Masks continue to be required in transportation hubs, all healthcare settings, including long term care and adult and senior care ...

    LA County Modifying Mask Requirements

    On February 23, 2022, the Los Angeles County Department of Public Health announced that it would be modifying its Health Officer Order to allow establishments, businesses, and venues verifying vaccination status to make masking indoors optional for fully vaccinated patrons and workers. The modified Order will go into effect at 12:01 am on Friday, February 25, 2022.

    Businesses, establishments, or venues that want to allow fully vaccinated customers and workers to unmask while indoors must verify that 100% of customers and workers provide proof of full vaccination or proof of a ...

    SB 113 Makes RRF Grants Tax Exempt and Approves $150M in Small Business Grants

    On February 9, 2022, Governor Newsom signed Senate Bill 113, approving additional economic relief for the COVID-19 pandemic. The bill passed with strong bipartisan support, with a vote of 68-0 in the State Assembly and 27-0 in the State Senate.

    SB 113 makes federal grants received through the Restaurant Revitalization Fund exempt from state tax liability. This means that businesses that received these grants will not have to pay California state taxes on the grant amounts.

    Additionally, SB 113 will provide $150 million in grants to the state's Small Business COVID-19 relief ...

    LA County Removes Outdoor Mask Requirements

    Consistent with last week’s announcement from the Los Angeles County Department of Public Health, at 12.01 AM today the county lifted the requirement that masks be worn outdoors at K-12 schools and childcare facilities as well as outdoor “mega” events, such as those held at the Hollywood Bowl and SoFi Stadium. The change is due to the drop in hospitalizations for COVID-19, as well as new COVID-19 cases, which have declined significantly over the last few weeks. 

    However, unlike most other areas of California and, indeed, the United States, Angelenos will still be required to wear ...

    Los Angeles County Department of Public Health Issues Mask Update

    Following Governor Newsom’s announcement that California’s indoor mask mandate would end on February 15, 2022 for all vaccinated persons, the Los Angeles County Department today issued a statement clarifying when the county’s own mask requirements would be eased. Specifically, when COVID daily hospitalizations drop below 2,500 for 7 consecutive days, masking will not be required at outdoor mega-events or in outdoor spaces at childcare facilities and K-12 schools. In addition, the masking requirement for indoor spaces will continue until:

    • Los Angeles County has two ...
    California Lifting Indoor Mask Mandate on February 15

    On February 7, 2022, California Governor Gavin Newsom announced that the state’s indoor mask mandate would expire on February 15, 2022, for vaccinated people.

    New face covering guidance from the California Department of Public Health (“DPH”) will go into effect on February 16, 2022. Under the guidance, universal masking is only required in specified settings. These settings where masks will continue to be mandatory include:

    • Public transit;
    • Indoors in K-12 schools;
    • Emergency shelters;
    • Healthcare settings;
    • State and local correctional facilities and detention centers;
    AB 628: Breaking Barriers to Employment Initiative

    The California Legislature expanded the Breaking Barriers to Employment Initiative by passing Assembly Bill 628, which amends Section 14033 of the Unemployment Insurance Code. 

    AB 628 builds on the 2017 California Workforce Innovation and Opportunity Act, which made programs and services available to assist individuals with employment barriers with finding opportunities to join the workforce. Specifically, AB 628 seeks to enhance racial and economic justice, in addition to promoting employment. In doing so, AB 628 revises the 2017 grant selection criteria requirements, the ...

    SB 362 Prohibits Use of Quotas at Chain Pharmacies

    Continuing the trend of legislation in response to headline news, California passed SB 362 prohibiting the use of quotas at chain community pharmacies. This bill modifies California’s Pharmacy Law, which regulates all pharmacy licensees.

    SB 362 applies to chain community pharmacies, which are defined as chains of 75 or more stores in California under the same ownership. Chain community pharmacies are distinct from independent community pharmacies (four pharmacies or less under the same ownership).

    The bill adds Section 4113.7 to the Business and Professions Code. That ...

    Governor Newsom To Revive COVID-19 Paid Sick Leave 

    Governor Newsom and the California Legislature have agreed to enact new legislation that will revive COVID-19 paid sick leave. The prior law created by Senate Bill 95, expired on September 30.  The new law is included in the state budget process and should be complete in a matter of weeks.

    The proposal is still being worked on, but it is likely that it will apply to all businesses with 26 or more employees. It is also probable that the bill will be retroactive to January 1, 2022 and will continue until September 30, 2022. The qualifying reasons will be the same as in SB 95 and will cover any ...

    SB 331 Expands Restrictions on Nondisclosure, Settlement and Separation Agreements

    In an effort to support the Me Too movement, California previously enacted Code of Civil Procedure section 1001 to prohibit any provision in a settlement agreement that prevents the disclosure of an act of sexual harassment, discrimination or assault related to a claim filed in a civil or administrative action.  In addition, Government Code section 12964.5 was created to make it unlawful to require an employee to sign a nondisparagement or nondisclosure agreement to deny the employee the right to disclose information about unlawful acts in the workplace, including sexual ...

    Supreme Court Upholds Vaccine Mandate for Medicare and Medicaid-Certified Providers and Suppliers

    On the same day that the United States Supreme Court imposed a stay of enforcement on OSHA’s vaccine mandate for private employers with over 100 employees, the Court ruled that the Centers for Medicare & Medicaid Services (CMS) had the statutory authority to impose a vaccination mandate on healthcare providers who care for Medicare and Medicaid patients. Facilities in states that were not previously subject to injunctions (listed below) must demonstrate that their staff is fully vaccinated by February 28, 2022.

    For those states where injunctions were lifted following the ...

    United States Supreme Court Imposes Stay on OSHA Vaccine Mandate

    Following an expedited hearing on January 7, 2022, the United States Supreme Court granted a petition for stay of enforcement of OSHA’s COVID-19 Vaccination and Testing; Emergency Temporary Standard that would have been imposed on employers of 100 or more employees.  This stay is, in effect, injunctive relief pending disposition of the numerous businesses, trade groups, and non-profit organizations’ consolidated petitions for review in the Sixth Circuit Court of Appeals.

    The Court disagreed with the Sixth Circuit’s prior opinion and determined that the applicants’ ...

    Los Angeles County Tightens Mask Mandates for Employers

    On January 5, 2022, Los Angeles County’s Department of Public Health modified its ongoing COVID-19 health order due to drastic increases in cases and resultant hospitalizations related to the Omicron and Delta variants. Among these modifications is an important new requirement which pertains to the wearing of masks by employees. 

    Specifically, employers in Los Angeles County must now provide their employees who work indoors and in close contact with other workers or the public with a well-fitting medical-grade mask, surgical mask or higher-level respirator, such as an N95 ...

    A Reminder: The IRS Mileage Rates Have Changed

    The 2022 mileage rates used to calculate the deductible costs of operating an automobile for business, charitable, medical, or moving purposes have increased from last year or remained unchanged. Specifically, as of January 1, 2022, the standard mileage rates for the use of a car (also vans, pickups or panel trucks) are:

    • 58.5 cents per mile driven for business use, up two and one-half cents from the rate for 2021;
    • 18 cents per mile driven for medical, or moving purposes for active-duty members of the Armed Forces, up two cents from the rate for 2021; and
    • 14 cents per mile driven in service of ...
    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 ...

    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 ...

    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, 2022, 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 ...

    Malls and Shopping Centers Exempt From SafePass Requirements

    Less than one week into LA’s SafePass proof of vaccine requirements for businesses went into effect, the Los Angeles City Council (the “Council”) voted 10-0 to remove malls and shopping centers as covered businesses. Mall operators have pointed to the difficult of enforcing the ordinance because malls and shopping centers have so many different points of entry. It remains unclear when the revisions to the ordinance will go into effect. Malls and shopping centers remain covered businesses under the ordinance until the language is formally changed, but the ordinance is not ...

    SB 639: The Hidden Cost of Phasing Out Certificate Programs for Workers With Disabilities

    “It is the intent of the Legislature to afford all Californians, regardless of whether they have disabilities, with protections to ensure equal pay and equal treatment in the workplace.” These are the closing words of the preface to Senate Bill 639; a noble goal. However, the good intentions paving the way for this new law – equalizing the monetary playing field for employees with disabilities – may result in more harm than good for some of those very workers.

    Before SB 639 was passed, employers could apply to the Industrial Welfare Commission for a special license, renewable ...

    SafePassLA Now In Effect 

    On November 8, 2021, SafePassLA officially went into effect. The Los Angeles City ordinance requires patrons of covered locations to demonstrate proof of full vaccination against COVID-19 before entering indoor spaces. Specifically, covered locations include:

    • The indoor portions of all establishments where food or beverages are served, including but not limited to, restaurants, bars, fast-food establishments, coffee shops, tasting rooms, cafeterias, food courts, breweries, wineries, distilleries, banquet halls, and hotel ballrooms;
    •  Gyms and fitness venues ...
    New Law Enhances Labor Commissioner’s Ability to Lien Employer Real Property

    In 2013 the California Legislature passed Assembly Bill 1386, which amended Labor Code section 98.2, giving the Labor Commissioner additional means to collect wages and penalties on behalf of workers. Labor Code section 98.2 was modified so that any amount due under a final order by the Labor Commissioner permits the Labor Commissioner to record a Certificate of Lien against the employer’s real property.

    Fast forward to September 2021 and the passage of Senate Bill 572.  This bill adds section 90.8 to the Labor Code, which becomes effective January 1, 2022.  This statute will allow ...

    Update: Federal Court Halts OSHA Vaccine Requirement 

    This weekend a federal court in Louisiana issued a temporary stay effectively stopping enforcement of the Occupational Safety and Health Administration’s Emergency Temporary Standard requiring vaccination or weekly testing for all employers with 100 or more employees except for certain healthcare facilities and federal contractors. Following the announcement of the ETS by OSHA last week, at least 27 states filed lawsuits to challenge the rules. The Fifth Circuit Court of Appeals sitting in New Orleans issued the stay on the basis that there are “grave statutory and ...

    West Hollywood Establishes Highest Minimum Wage In The Nation 

    At a city council meeting which began on November 3, 2021, and ended on November 4, 2021, the West Hollywood City Council voted to increase the minimum wage for hourly workers in West Hollywood.  In response to significant pressure from local businesses, the council made last minute changes to the ordinance to require a phased-in approach for some businesses.  Specifically, large businesses with 50 or more employees will be required to raise the minimum wage from the current $14.00 per hour to $15.50 on January 1, 2022, with further increases scheduled for July 1, 2022 at $16.50, January ...

    OSHA Issues Vaccine and Testing Requirements For Large Employers

    On November 4, 2021, President Biden announced rules requiring COVID-19 vaccinations or weekly testing for companies with 100 or more employees.  These requirements will reach two-thirds of all private-sector workers in the United States.

    The U.S. Department of Labor’s Occupational Safety and Health Administration’s (“OSHA’s”) Emergency Temporary Standard (“ETS”) will be officially published in the Federal Register on November 5, 2021, but an unpublished version of the 490-page document is available now. The ETS applies to all employers with a total of 100 or ...

    HHS Issues Guidance on HIPAA Privacy Rule and COVID-19 Vaccinations

    On September 30, 2021, the U.S. Department of Health and Human Services (“HHS”) Office of Civil Rights issued guidance to help the public and employers understand what privacy rules apply to disclosures and requests for information about whether a person has received a COVID-19 vaccine.

    The Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) has a Privacy Rule that regulates covered entities, including health plans, health care clearinghouses and health care providers. According to HHS, “The HIPAA Privacy Rule establishes national standards to ...

    LA County Proof of Vaccine Requirements Take Effect

    Today, October 7, 2021, Los Angeles County Public Health Officer Order’s vaccine requirements go into effect. These requirements were first announced as an executive order of the Public Health Officer and were ratified by the Los Angeles County Board of Supervisors on September 15, 2021.

    Under these requirements, proof of vaccination or a negative test result will be required to enter outdoor mega-events, and proof of at least one dose of the COVID-19 vaccine will be required to enter or work in indoor portions of bars, lounges, nightclubs, breweries, wineries and distilleries in ...

    Los Angeles Adopts Sweeping Vaccine Mandate

    On Wednesday, October 6, 2021, the Los Angeles City Council voted 11-2 to approve a new ordinance that requires proof of a COVID-19 vaccination to enter indoor restaurants, shopping centers, movie theaters, hair and nail salons, and a wide variety of other indoor venues. Grocery stores and pharmacies are not included in the ordinance. If religious or medical exemptions are given to an individual, proof of a negative COVID-19 test taken within 72 hours is needed for the individual to enter an indoor space. The ordinance will go into effect on November 4, 2021.

    Because the ordinance ...

    LA City Council Moves Towards Sweeping Vaccine Requirements

    On September 29, 2021, the Los Angeles City Council debated a sweeping proof-of-vaccine requirement, with most Councilmembers indicating support. The ordinance will likely be passed upon its second reading next Tuesday.

    The ordinance would require customers to show proof of full COVID-19 vaccination status to enter a wide variety of public spaces, including restaurants, coffee shops, gyms and fitness venues, movie theaters, shopping malls, concert venues and personal care establishments.

    The City’s proposed rules would expand Los Angeles County’s existing ...

    Mandatory Arbitration Agreements are Unenforceable in California, Again

    In a year of tough decisions for California employers, the Ninth Circuit just issued another mixed bag of legal decisions to navigate, this time regarding the enforceability of mandatory arbitration agreements.

    CA Labor Code § 432.6 and Chamber of Commerce of the United States v. Bonta

    In October, 2019, California passed Assembly Bill 51, which became codified as Labor Code § 432.6, effective January 1, 2020. This law provided that employers could not require employees to sign a mandatory arbitration agreement as a condition of employment. In addition, it created civil and criminal ...

    LA County Announces Proof-of-Vaccine Requirements for Bars and Large Outdoor Events

    On September 15, 2021, the Los Angeles County Board of Supervisors announced that proof of a COVID-19 vaccination will be required at indoor bars, wineries, breweries, nightclubs and lounges in Los Angeles County. This requirement will be announced in a Department of Public Health Order.

    The order will recommend, but not require, vaccine verification for employees and customers in indoor portions of restaurants.

    The Los Angeles County mandate will also apply to employees of covered establishments and require that both employees and customers have at least one vaccine dose by ...

    West Hollywood Imposes Vaccine Verification Requirement

    On September 10, 2021, the City of West Hollywood issued an Emergency Executive Order (the “Order”) implementing vaccine verification requirements for some businesses throughout the City. The West Hollywood City Council first discussed vaccine mandates for businesses in a July 21, 2021 meeting.

    The Order mandates restaurants, bars, nightclubs, health and fitness facilities, and personal care establishments to require all patrons ages 18 and older to show proof that they are fully vaccinated before entering any indoor portions of a facility. Additionally, business ...

    President Biden Issues COVID-19 Vaccine Mandate on Federal and Private Employers

    On September 9, 2021, President Biden signed two Executive Orders imposing sweeping new vaccine mandates on federal workers and contractors. This new mandate represents a shift in the White House’s policy on vaccinations, which had previously offered an alternative to those who wish to remain unvaccinated by allowing those individuals to wear masks while on federal property as long as they submitted to regular screening for COVID-19.

    All federal employees, contractors and subcontractors employed by the federal government shall be required to provide proof of vaccination ...

    LA County Issues Mask Mandate for Large Outdoor Events

    On August 17, 2021, the Los Angeles County Department of Public Health announced a mask mandate for large outdoor mega-events of more than 10,000 people. This is the first outdoor mask mandate since the County began its reopening attempt on June 15, 2021.

    All attendees at those events must now wear face masks at all times, except when actively eating or drinking. Event operators are required to prominently include information about the mask mandate throughout the event and on communications to guests. The County also has a recommendation (but not a mandate) that all attendees at ...

    L.A. City and County Consider Vaccine Requirement for Public Spaces

    On Wednesday, August 11, 2021, the Los Angeles City Council approved a motion to require people to have at least one dose of the COVID-10 vaccine before being admitted to public spaces, including restaurants, entertainment venues and retail stores. 

    The motion states: “the City Council instruct[s] the City Attorney to prepare and present an ordinance that would require eligible individuals to have received at least one dose of vaccination to enter indoor spaces, including but not limited to, restaurants, bars, retail establishments, fitness centers, spas and entertainment ...

    Reminder: Businesses Must Enforce Reinstated Los Angeles County COVID-19 Mask Requirements

    Keeping current on the frequent changes to COVID-19 business requirements can be very challenging. The return to indoor masking requirements on July 17, 2021, in Los Angeles County has been widely publicized. Even so, Los Angeles businesses may not be aware that the county is currently enforcing the indoor masking requirements through onsite inspections of county businesses. 

    In fact, during the short period between July 17, 2021 and July 23, 2021, Los Angeles County reports that its Department of Public Health inspectors visited 1,013 restaurants, 9 bars, 222 food markets, 22 ...

    Employer Alert: Los Angeles County Revises Health Order to Reinstate Indoor Mask Requirement Regardless of Vaccination Status

    On July 16, 2021, the Los Angeles County Department of Public Health (LACDP) issued a revised health order available here (Order) requiring masks for everyone, regardless of vaccination status, in all indoor public settings, venues, gatherings and businesses. Examples of such locations include offices, retail, restaurants, theaters, family entertainment centers, meetings, etc.

    The Order also requires that individuals, businesses, venue operators or hosts of public indoor settings require all patrons to wear masks in all indoor settings, regardless of vaccination status ...

    Employer Alert: Los Angeles County Reinstates Indoor Mask Requirement Regardless of Vaccination Status

    Beginning Saturday, July 17, 2021, at 11:59 P.M., Los Angeles County will once again require all residents to wear masks in indoor public spaces, regardless of their vaccination status. The requirement will be reimposed due to rising Los Angeles County COVID-19 cases and the spread of the highly infectious Delta variant.

    Los Angeles County reported an average of 1,077 new cases daily during the 7-day period ending July 14, 2021, which is a 261% increase from the prior two-week period. An additional 1,537 cases were reported today, July 15th, representing an increase of over 80 ...

    EEOC Issues Updated COVID-19 Guidance Regarding Vaccination Incentives

    The Equal Employment Opportunity Commission (EEOC) has issued updated guidance regarding providing incentives to employees to encourage COVID-19 vaccination, examining various scenarios under the Americans with Disabilities Act (ADA) and the Genetic Information Discrimination Act of 2008 (GINA). The updated guidance can be found here under items K.16 - K.21.

    The guidance confirms that under the ADA, as long as the incentive is not so substantial as to be coercive, an employer may provide an incentive (which may include both rewards and punishments) to employees for ...

    FAST Act (AB-257) Narrowly Defeated

    On June 3, 2021, AB-257, the Fast Food Accountability and Standards Recovery Act (the “FAST Act”) was defeated in the California Assembly, coming up three votes short of the 41 votes needed. 

    The FAST Act would have established a Fast Food Sector Council (the “Council”), comprised of 11 members appointed by the Governor, Speaker of the Assembly and Senate Rules Committee. Under the proposed bill, that Council would have been tasked with conducting a full review of the adequacy of fast food restaurant health safety and employment standards, and establishing industry-wide ...

    DOL Proposes New Tip Credit Rule

    On June 23, 2021, the U.S. Department of Labor published a Notice of Proposed Rulemaking to limit the amount of non-tip producing work that a tipped employee can perform when an employer is taking a tip credit. 

    According to the DOL, the proposed rule “clarifies when an employee is working in a tipped occupation and when a worker has performed such a substantial amount of non-tipped labor that an employer can no longer take a tip credit and must pay the full federal minimum wage to the worker.” 

    Under the proposed rule, if a tipped employee spends either more than 20 percent of their ...

    Cal/OSHA Approves Modified COVID-19 Workplace Regulations

    On June 17, 2021, the California Occupational Safety & Health Standards Board (the Cal/OSHA Board) voted to approve a set of new modified COVID-19-related workplace emergency regulations, found here. The new modified regulations will need to be approved within ten days by the state Office of Administrative Law, which is expected to approve the rules. Governor Newsom has also indicated that he may approve the rules immediately. 

    These regulations replace more stringent regulations that were inconsistent with the latest guidance issued by the Centers for Disease Control and ...

    California Announces Rules for June 15 Reopening; Cal/OSHA Reconsiders Employer Requirements

    On June 9, 2021, the California Department of Public Health announced a new face coverings guidance that will go into effect statewide on June 15, 2021. In addition, Governor Newsom’s office announced that on June 15, 2021, California would be fully reopen with no capacity limits or distancing required by the state. The county-by-county color tier system will also be eliminated. However, individual county health departments may continue to impose restrictions under local public health orders.

    Under the State’s new guidance, fully vaccinated persons are not required to wear ...

    Cal/OSHA Issues Modified COVID-19 Regulations

    On June 3, 2021, the California Occupational Safety & Health Standards Board approved new modified COVID-19-related emergency regulations. The new modified regulations, which are found here, will need to be approved by the state Office of Administrative Law within ten days. The OAL is expected to approve the rules.

    When approved, the new regulations will become effective on June 15, 2021, the same day on which Governor Newsom announced California would reopen. These regulations may be further refined in the coming weeks to take into account changes in circumstances, especially as ...

    California Extends ABC Regulatory Relief

    On June 3, 2021, California Governor Gavin Newsom announced the extension of some pandemic alcohol measures designed to help restaurants and bars. The press release states: “The Administration today extended relief measures that permit restaurants and bars to continue to benefit from their investments to expand outdoor operations in areas such as sidewalks and parking lots, and to continue the sale of to-go alcoholic beverages with food deliveries, among other successful pandemic adaptations. In addition, the Administration is urging local governments to facilitate ...

    U.S. Court of Appeals Upholds CalSavers Program

    The United States Court of Appeals (9th Circuit) recently upheld California’s CalSavers Retirement Savings Program (CalSavers), which provides retirement savings accounts to employees without employer retirement benefit plans. The Howard Jarvis Taxpayers Association sued to challenge the law establishing the CalSavers program arguing that it was superseded by federal retirement law, specifically the federal Employee Retirement Income Security Act of 1974 (ERISA). However, the U.S. Appeals court upheld the CalSavers program holding that it was not preempted by ERISA.

    California Expands Business Relief Grants

    On May 13, 2021, California Governor Gavin Newsom announced an expansion of the state’s COVID-19 Small Business Relief Grant program from $2.5 billion to $4 billion. The expansion makes California’s business relief grants program the largest in the country.

    To date, 198,000 businesses have received grants under the program, for a total of $475,001,244. While the application portal is currently closed, it is expected to reopen after the new grant's funds have been processed. The Governor’s office announced the following initiatives for businesses:

    • Estimated $895 ...
    California To Wait Until June 15, 2021 To Adopt the CDC’s New Mask Guidelines

    On May 17, 2021, California’s Secretary of Health and Human Services, Dr. Mark Ghaly, announced that California would begin following the U.S. Centers for Disease Control and Prevention (the “CDC”)’s new guidelines regarding the lifting of mask restrictions for fully vaccinated individuals on June 15, 2021. These new guidelines provide that those who are fully vaccinated against the COVID-19 virus no longer need to wear masks outdoors or in most indoor settings.

    After serving as one of the major epicenters for the COVID-19 virus in the United States in the beginning of this ...

    CDC Loosens Mask Mandate for Fully Vaccinated People

    On May 13, 2021, the U.S. Centers for Disease Control and Prevention (the “CDC”) issued new guidance lifting mask restrictions for fully vaccinated individuals. Under the new guidance, people who are fully vaccinated may stop wearing masks or maintaining social distance in most outdoor and indoor settings. 

    The CDC’s summary of changes states that “fully vaccinated people no longer need to wear a mask or physically distance in any setting, except where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and ...

    The American Rescue Plan Act of 2021 Provides COBRA Premium Subsidies

    Employers know that the Consolidated Omnibus Budget Reconciliation Act (COBRA) provides an opportunity for group health plan continuation coverage to covered employees and their families upon the occurrence of a qualifying event, such as a termination of employment or a reduction in hours. The recently enacted American Rescue Plan Act of 2021 (ARP) provides COBRA limited premium subsidies and new enrollment rights to certain Assistance Eligible Individuals. An Assistance Eligible Individual would not be required to pay COBRA premiums from April 1, 2021 through September 30 ...

    LA County to Move into Yellow Tier

    On Wednesday, May 5, 2021, the Los Angeles County Public Health Department (the “Department”) is expected to issue a new Public Health Officer order to officially move into the least restrictive “yellow tier” of California’s color-coded reopening system. The criteria for entering the yellow tier is less than 2% positivity and fewer than 1 daily new case per 100,000 county residents. The Order would be effective on Thursday, May 6, 2021.

    On April 30, 2021, the Department made some modifications to the Public Health Order, lifting hours limitations on bars, breweries and ...

    DFEH Updates COVID-19 Vaccination Guidance

    California’s Department of Fair Employment and Housing (DFEH) has updated its COVID-19 vaccination guidance, replacing its prior guidance issued July 24, 2020.

    The DFEH’s updated guidance, available here, permits employers to require employees to receive a vaccine approved by the Food and Drug Administration (FDA), subject to certain exceptions and requirements. 

    Specifically, in instituting such a mandatory policy, an employer’s policies or practices cannot discriminate or harass employees or applicants based on a characteristic protected by the Fair Employment ...

    California Enacts COVID-19 Right of Recall Law in Certain Sectors

    Governor Newsom has signed into law Senate Bill 93, a state-wide right of recall, intended to assist California workers in sectors that have been especially hard hit by the COVID-19 pandemic. This new law, which is similar to earlier Los Angeles County and Los Angeles City COVID-19 ordinances, goes into effect immediately and will remain in effect through December 31, 2024. 

    California’s new right of recall law applies to certain hotels, private clubs, event centers, airport hospitality operations and providers of janitorial, maintenance or security services to office, retail ...

    Los Angeles County Revises Restaurant Protocols and Announces Live Event Rules

    On April 17, 2021, the Los Angeles Department of Public Health (“Department”) revised its protocol for restaurants to permit increased activities in light of the County’s Orange Tier reopening.

    The changes include:

    • Allowing restaurants to have live outdoor entertainment. Live entertainment operations are allowed outdoors only.  Performers must be at least 12 feet away from seated customer groups.
    • Allowing restaurants to host private events when the restaurant is not operating for regular business. Private events are subject to a separate protocol and restaurants ...
    California Announces Full Reopening on June 15

    On April 6, 2021, California Governor Gavin Newsom announced a plan to lift all COVID-19 virus restrictions by June 15, 2021. The full reopening is contingent on both (1) sufficient vaccine supply to ensure that all Californians age 16 and over who wish to be inoculated are able to do so and (2) stable and low hospitalization rates. The full reopening would mean an official end to California’s color-coded tier system.

    It remains unclear what restrictions may remain under the full reopening but Governor Newsom specified that some form of mask mandate will remain. The California ...

    LA County Moves to Orange Tier Reopenings on April 5

    Both Los Angeles and Orange County are now eligible to move from the Red Tier into the Orange Tier of COVID-19 reopening guidelines under the state’s Blueprint for a Safer Economy. 

    On March 30, 2021, the Los Angeles County Public Health Department announced that while it satisfied the numbers requirement to move into the Orange Tier, it would wait until April 5 to permit businesses to operate at increased capacity.

    On April 5, Los Angeles County will officially adopt Orange Tier reopening rules to the Public Health Officer Order. Under these new rules, the following changes will take ...

    Employer Alert: California Labor Commissioner Issues New COVID-19 Supplemental Paid Sick Leave FAQ and Required Poster

    As reported here, on March 19, 2021, Governor Gavin Newsom signed into law Senate Bill 95. This new law requires all California employers (including those with collective bargaining agreements) with 25 or more employees to provide paid supplemental sick leave to employees who are unable to work or telework due to certain COVID-19 related reasons. In-home supportive service providers are also required to provide paid supplemental sick leave to their providers.

    The new COVID-19 supplemental sick leave must be provided on the oral or written request of the covered employee ...

    SB 95: California Provides Supplemental Paid Sick Leave for COVID-19

    On March 19, 2021, California Governor Gavin Newsom signed Senate Bill 95 providing a new form of COVID-19 related paid sick leave for many California workers. The law will become effective on March 29, 2021, and applies retroactively to sick leave taken beginning on or after January 1, 2021. All California employers with more than 25 employees and in-home supportive services providers are required to provide the supplemental sick leave benefits to employees. The law will remain in effect through September 30, 2021.

    SB 95 provides for COVID-19 supplemental paid sick leave for ...

    L.A. County Red Tier Reopening Imminent

    On March 11, 2021, the Los Angeles County Department of Public Health (the “Department”) announced an anticipated reopening of certain activities between March 15 and March 17, as L.A. County moves to the lower risk Red Tier of the state’s reopening plan. The exact date of the reopening will depend on when the County hits the threshold of 2 million vaccine doses being administered to people in the most under-resourced communities across the County.

    The following activities will be permitted next week after L.A. County moves to the Red Tier:

    • Museum, zoos and aquariums can open ...
    Appeals Court Upholds Expired Outdoor Dining Ban

    On March 1, 2021, the Court of Appeal, Second Appellate District ruled in favor of the Los Angeles County Department of Public Health (the “Department”) officials who halted outdoor dining in November 2020 during a spike in COVID-19 cases.

    After the Department announced a ban on all outdoor dining, the California Restaurant Association (“CRA”) filed a lawsuit. State Court Judge James Chalfant initially ruled in favor of the CRA on December 8, 2020, and held that the Department acted arbitrarily and failed to perform the required risk-benefit analysis before issuing the ...

    California Passes Pandemic Relief Measures Aimed at Supporting Business

    On February 23, 2021, California Governor Gavin Newsom signed a legislative package of six bills providing relief to individuals and businesses experiencing hardship due to the COVID-19 pandemic. Some of these measures are directly targeted towards the restaurant and hospitality industry.

    Small Business Grant Relief

    The new measures provide $2.1 billion in small business grants of up to $25,000. This is a significant increase over the $500 million that was initially approved for these grants in November 2020.

    Grants are available only for businesses and nonprofits with gross ...

    CalSavers Deadline Approaches for Mid-Sized Companies to Register or Certify as Exempt

    The CalSavers Retirement Savings Program (CalSavers) was established to assist the estimated 7.5 million California employees without employer retirement savings plans. Mandatory compliance is phased-in over time and depends on the size of the employer. The current phase requires all California employers with 51 to 100 employees to register with CalSavers or certify that they are exempt by June 30, 2021. More specifically, employers without employer-sponsored retirement plans must register to begin offering the state-mandated employer retirement plan to their employees ...

    LA City Council Joins County, Passing “Hero Pay” for Grocery Workers

    On February 24, 2021, the Los Angeles City Council voted 14-1 to pass an ordinance mandating that employers provide $5/hour in additional premium hazard pay for on-site grocery and drug retail workers.

    The ordinance is expected to go into effect the week of March 1, after it is signed by Mayor Eric Garcetti, who has already expressed support. The pay increase will go into effect for 120 days and then expire.

    The ordinance applies to grocery stores and drug retails stores with more than 300 employees nationwide and more than ten employees on-site in Los Angeles. Approximately 26,000 ...

    LA County Mandates “Hero Pay” for Grocery Workers

    On February 23, 2021, the Los Angeles County Board of Supervisors voted 4-1 to institute a $5 per hour “Hero Pay” increase for frontline grocery workers and drug retailers in unincorporated areas of Los Angeles County. The increase is effective immediately and will remain in effect for 120 days. The ordinance will increase pay for approximately 2,500 grocery workers in these unincorporated areas of the County.

    The motion was co-sponsored by Supervisors Hilda Solis and Holly Mitchell. The motion states: “Frontline grocery and drug retail workers have been met with COVID-19 ...

    Department of Labor Proposes Delay on Tip Regulations and Independent Contractor Rule

    On February 5, 2021, the Department of Labor (DOL) published two notices of proposed ruling to delay the effective date of two rules finalized by the DOL under the Trump Administration regarding tips and independent contractor rules. The proposed delays are designed to allow the DOL “additional opportunity for review and consideration” of both rules.

    The first rule is Tip Regulations Under the Fair Labor Standards Act (“Tip Regulations”), which was published on December 30, 2020, and set to go into effect on March 1, 2021. The proposed rule would delay the effective date of ...

    Employer Alert: New Compensation Threshold for Computer Software Overtime Exemption

    Effective January 1, 2021, the California Department of Industrial Relations issued a new compensation threshold for exempt computer software employees, reflecting an increase of 2% from last year. 

    To qualify for the overtime exemption, computer software employees must be paid a salary of at least $98,907.70 annually ($8,242.32 monthly) or an hourly wage of at least $47.48.  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 specifically ...

    A Reminder: The IRS Mileage Rates Have Changed

    The 2021 mileage rates used to calculate the deductible costs of operating an automobile for business, charitable, medical or moving purposes have decreased from last year, or remained unchanged. Specifically, as of January 1, 2021, the standard mileage rates for the use of a car (also vans, pickups or panel trucks) are:

    • 56 cents per mile driven for business use, down one and one-half cents from the rate for 2020;
    • 16 cents per mile driven for medical or moving purposes, down one cent from the rate for 2019; and
    • 14 cents per mile driven in service of charitable organizations, unchanged from ...
    President Biden Issues Early Executive Order on COVID-19 Worker Safety

    On January 21, 2021, President Biden issued an Executive Order on Protecting Worker Health and Safety that calls for a government review of worker safety standards for COVID-19.

    The Executive Order directs the Secretary of Labor to issue revised guidance to employers on workplace safety during the COVID-19 pandemic within two weeks. It further directs the Secretary of Labor to consider emergency temporary standards on COVID-19 and issue those standards by March 15, 2021.

    The Executive Order calls for a review of enforcement efforts previously undertaken by the Occupational ...

    California Lifts Regional Stay at Home Order

    On January 25, 2021, the California Department of Public Health announced that it was lifting the Regional Stay at Home Order for all regions statewide, including Southern California. Four-week ICU capacity projections for the three regions still under the order (Southern California, Bay Area and San Joaquin Valley) were above 15%.

    According to the Department, “this action allows all counties statewide to return to the rules and framework of the Blueprint for a Safer Economy and color-coded tiers that indicate which activities and businesses are open based on local case rates ...

    LA County to Reopen Outdoor Dining

    On January 25, 2021, Los Angeles County Director of Public Health Barbara Ferrer announced that the county would be permitting outdoor dining starting Friday, January 29. The county will also remove operation restrictions for non-essential businesses between 10 p.m. and 5 a.m. The County’s announcement followed Governor Gavin Newsom’s lifting of the state’s Regional Stay at Home Order earlier today.

    LA County Board of Supervisors Chair Hilda Solis released a statement that “Los Angeles County will essentially align with the state, by the end of the week, to allow for the ...

    Employer Reminder: Minimum Wage Increases for 2021

    On January 1, 2021, the California minimum wage increased to $14.00 per hour for employers with at least 26 employees and $13.00 per hour for smaller employers. The state minimum wage also governs the exempt employee threshold salary, which has increased accordingly. The new minimum salary for employees who otherwise qualify to be exempt from overtime is $58,240 annually for employers with at least 26 employees and $54,080 annually for employers with fewer than 26 employees. 

    Further, several California municipalities will raise their minimum wage rates on July 1, 2021. Employers ...

    LA County Considers Mandated $5/Hour “Hero Pay” Increase For Grocery Workers

    On January 5, 2021, the Los Angeles County Board of Supervisors considered an urgency ordinance requiring grocery stores to pay workers an additional $5/hour as “Hero Pay” due to the COVID-19 pandemic. 

    Supervisors Hilda Solis and Holly Mitchell put forth the motion and noted that “as the County experiences a record-breaking wave of COVID-19 cases, grocery retailers have experienced an increase in outbreaks with nearly 500 businesses currently under investigation in the County alone. The inability to practice social distancing consistently at work due to large crowds has ...

    Los Angeles County Issues Mandatory Self-Quarantine for Non-Essential Travel

    Effective beginning December 31, 2020, the Los Angeles County Department of Public Health published a Mandatory Directive on Travel (Appendix W) and issued a Revised Temporary Order, both of which require a mandatory quarantine of at least 10 days after non-essential travel outside the Southern California Region (the counties of Imperial, Inyo, Los Angeles, Mono, Orange, Riverside, San Bernardino, San Diego, San Luis Obispo, Santa Barbara and Ventura). 

    The Order and Travel Directive apply to Los Angeles County residents and non-residents who enter Los Angeles County from ...

    Southern California Regional Stay at Home Order Extended

    On December 29, 2020, California Health and Human Services Secretary Dr. Mark Ghaly announced that the Southern California region would remain under a regional stay-at-home order indefinitely until ICU capacity goes above 15%. ICU capacity is currently at 0% in Southern California.

    The Regional Stay Home Order was first announced on December 3, 2020. The order prohibits private gatherings of any size, closes sector operations except for critical infrastructure and retail, and requires 100% masking and social distancing except for certain limited exceptions. The order sets a ...

    New Lawsuits Challenge State COVID-19 Measures

    A lawsuit has been filed against Cal/OSHA regarding its recently instituted regulations requiring employers to adopt numerous COVID-19 measures. In addition, a separate suit was filed against Governor Newsom for the outdoor dining ban that is part of recent COVID-19-related regional restrictions. 

    Specifically, the National Federation of Independent Business (NFIB) teamed with the National Retail Federation and three NFIB small business owner members to sue the California Division of Safety and Health (Cal/OSHA), the California agency that recently instituted extensive ...

    DOL Announces Final Tip Pooling Rule

    On December 22, 2020, the Department of Labor (“DOL”) announced a final rule revising its tipped employee regulations. The final rule is designed to address and incorporate amendments made to section 3(m) of the Fair Labor Standards Act (“FLSA”) by the Consolidated Appropriations Act of 2018 (“CAA”). That amendment prohibits employers from keeping tips received by their employees, regardless of whether the employer takes a tip credit. It also prohibits employers from allowing managers or supervisors to keep any portion of employee’s tips.

    In this final rule, the ...

    DOL Inspector General Report Criticizes Agency’s Tip Rule Process

    On December 11, 2020, the U.S. Department of Labor’s Office of the Inspector General (“OIG”) released a report finding that the Department of Labor (“DOL”) did not demonstrate that it followed a sound process in promulgating its 2017 tip rule.

    The DOL published a Notice of Proposed Rulemaking of the 2017 tip rule on December 5, 2017. The 2017 tip rule rescinded portions of the DOL’s 2011 tip regulations under the Fair Labor Standards Act, which were passed by the Obama Administration. In issuing the 2017 tip rule, the DOL stated that the 2011 tip rule incorrectly construed ...

    Judge Issues Preliminary Injunction Against Los Angeles County Outdoor Dining Ban

    Yesterday Judge James Chalfant issued a preliminary injunction against Los Angeles County’s outdoor dining ban on the basis that the county acted arbitrarily and failed to perform the required risk-benefit analysis. The case was brought by the California Restaurant Association and Mark Geragos to challenge the outdoor dining ban imposed by the November 30th Los Angeles County stay-at-home order.

    The Court held that L.A. County was required to perform a complete risk-benefit analysis before enacting the ban and that it failed to do so. The Court’s ruling noted that the L.A ...

    California Imposes Regional Stay-at-Home Order

    On December 3, 2020, California Governor Gavin Newsom announced a new regional stay-at-home order.

    Under the order, California is divided into five regions: Northern California, Greater Sacramento, Bay Area, San Joaquin Valley and Southern California. Regions where the ICU capacity has gone over 85% will be placed into a Stay-at-Home order for a minimum of three weeks. After the three-week period, reopening of closed services will be based on four-week projections of regional ICU capacity.

    Southern California and three other regions are anticipated to reach 85% or more ICU ...

    App Companies Victorious in Prop 22 Fight

    On November 4, 2020, Uber, Lyft and Door Dash secured a victory in their expensive campaign to categorize app-based drivers as independent contractors. 55% of California voters voted in favor of Proposition 22, which means that app-based drivers will be considered independent contractors, and not eligible for employee benefits or protections.  

    The Lead-Up: California’s Independent Contractor Muddle

    For the past few years, California businesses have reeled from a California court decision and new laws, which dramatically limit the use of independent contractors ...

    CDC Announces Alternatives to 14-Day COVID-19 Quarantine

    Today, December 2, 2020, the United States Centers for Disease Control and Prevention (CDC) announced alternatives to the 14-day recommended quarantine for those exposed to COVID-19.

    For individuals exposed to COVID-19 who have not experienced symptoms, the CDC advises that quarantine can now end after 10 days if no COVID-19 test is taken, or after 7 days with a negative COVID-19 test.

    However, the CDC advises continued monitoring of symptoms for the full 14 days after exposure to the virus "especially if quarantine is discontinued early."  The CDC also recommends the full 14-day ...

    LA County Announces New Stay at Home Order November 30-December 20

    Los Angeles County’s Public Health Department announced a new stay at home order, which goes into effect November 30, 2020 and will remain in place until December 20, 2020.

    Under the new order, all public and private gatherings with individuals from more than one household are prohibited, except for faith-based services and protests.

    The order states that restaurants, bars, breweries and wineries remain closed for in-person dining and drinking “because of high rates of transmission in the community.” The order states that one reason for the closure of in-person dining is ...

    LA County Halts Outdoor Dining

    On November 22, 2020, the Los Angeles County Department of Public Health announced that it would be shutting down all outdoor dining for a minimum of three weeks. The order will take effect on Wednesday, November 25 at 10 pm, and will be in place for at least the next three weeks.

    The Public Health Department stated that “new COVID-19 cases remain at alarming levels and the number of people hospitalized continue to increase, the Los Angeles County Health Officer Order will be modified to restrict dining at restaurants, breweries, wineries and bars as the five-day average of new cases ...

    California Announces 10pm Curfew for One Month

    On November 19, 2020, California Governor Gavin Newsom announced a mandatory overnight stay-at-home order. Under the order, Californians in the purple tier of the state’s reopening guidance, which now includes Los Angeles, Orange County, Ventura County and San Diego County, will be prohibited from leaving their homes for nonessential activity from 10pm to 5am. The restriction goes into effect on November 21, 2020 and is scheduled to last until December 21, 2020, although it may be extended.

    The order requires “that all gatherings with members of other households and all ...

    Security Officers Can Now Remain On-Call During Rest Breaks; What This Means for All California Employers

    If your workforce includes private security officers, then new Assembly Bill 1512 should come as great news to you.  Back in 2016, the California Supreme Court issued a controversial decision called Augustus v. ABM Security Services, Inc. which held that ABM’s security officers were not afforded legally compliant, off-duty rest breaks as long as they were required to carry pagers and respond to emergencies on an “as needed” basis.  Citing the “public interest that security officers are able to respond to emergency situations without delay”, California’s new AB 1512 ...

    LA County Sets 10pm Curfew, Cuts Capacity for Restaurants, Retail and Offices

    On November 17, 2020, the Los Angeles County Board of Supervisors determined at a closed meeting that it would be setting a 10pm curfew for restaurants, bars, breweries, wineries, non-essential retail businesses and essential offices. These businesses will not be allowed to be open to the public for entry from 10pm to 6am. At this point it is unclear whether this restriction will also apply to takeout and delivery options.

    The LA Times and Daily News reported that restaurants, breweries and wineries operating outdoors will be limited to 50% maximum outdoor capacity. All indoor ...

    More Reopening Rollbacks in California

    On November 16, 2020, California officials pulled an “emergency brake” and announced that the state would be rolling back reopenings in 28 counties across the state. These changes will go into effect on Tuesday, November 17. Los Angeles County has consistently remained in the purple tier, which prohibits indoor dining, closes bars and breweries, and allows malls and retail at 25% capacity.  However, San Diego County, Ventura County and Orange County were in Tier 2 and have now moved into a more restrictive tier.

    Under California’s COVID-19 tier system, Tier 1 ...

    California’s AB 2143 Modifies Prohibition of No-Rehire Agreements 

    Remember Assembly Bill 749 last year? Basically, AB 749, codified as Code of Civil Procedure section 1002.5, prohibited the use of no-rehire clauses in settlement agreements regarding disputes in which the worker had filed a complaint against the employer. It only provided a single narrow exception to allow no-rehire clauses if the employer made a good faith determination that the employee engaged in sexual harassment or sexual assault. Our article regarding AB 749 can be found here.

    Employers have been largely dissatisfied with AB 749. They argue that AB 749 is overly restrictive ...

    California Continues Effort to Hold Employers Accountable for Diversity In the Workplace through AB 979 and SB 973

    Building upon California’s prior efforts to increase diversity in the workplace, Governor Newsom has signed into law Assembly Bill 979 and Senate Bill 973.  AB 979 requires greater diversity on corporate boards of directors while SB 973 imposes pay reporting requirements based on gender, race, and ethnicity. Both laws will become effective on January 1, 2021.

    AB 979 applies to publicly held corporations headquartered in California, requiring them to diversify their boards of directors with directors from “underrepresented communities”.  AB 979 defines “director from ...

    CDC Redefines “Close Contact” with COVID-19 Infected Individual

    On Wednesday, October 22, 2020, the Centers for Disease Control and Prevention (CDC) expanded the definition of a “close contact” with a COVID-19 infected person to include brief interactions over a 24-hour period. This expanded definition has important implications for the workplace and impacts all COVID-19 state and county health orders.

    Previously, the CDC defined a “close contact” to mean spending at least 15 minutes within six feet of an infectious person.  The new definition states that cumulative contact of 15 minutes or more within six feet of an infectious person ...

    #MeToobin? When Home and Work Collide

    Within hours, the sad story of Jeffrey Toobin became common knowledge. For those of you just emerging from a yoga retreat or a Dodgers-only-World-Series media frenzy, Jeffrey Toobin is (or was, as it remains to be seen what will ultimately happen with his employment status) a legal analyst for CNN and a writer for the New Yorker magazine. Highly respected and knowledgeable, Toobin’s comments on current legal events and issues were often both enlightening and insightful. Until Monday, when Jeffrey Toobin took the occasion of a Zoom call populated with numerous other New Yorker

    AB 1281 Extends Employee Personal Information Exemption from Consumer Privacy Act

    Assembly Bill 1281 extends to January 1, 2022, the exemption for employee personal information from most requirements of California’s Consumer Privacy Act.  Under last year’s AB 25, this exemption was set to expire on January 1, 2021.  Having been signed by Governor Newsom, AB 1281 will effectively replace AB 25 commencing on January 1, 2021.

    The exemption allows businesses to collect and use a person’s information within the context of that person’s role or former role at the business. Employers still have the obligation to provide the employee or applicant with ...

    Employer Alert: SB 1383 Requires Small Employers to Provide Family, Medical and Child Bonding Leave and Expands Family Member Care Leave

    Effective January 1, 2021, Senate Bill 1383 will significantly expand the California Family Rights Act (CFRA) to cover employers with at least 5 employees.  Previously, CFRA leave was required only of employers with at least 50 employees within a 75-mile radius.  Further, SB 1383 expands the CFRA with respect to purposes for which leave may be taken.

    With the enactment of SB 1383, employers with only 5 employees or more will have to provide employees who meet certain minimum service requirements with up to 12 workweeks of unpaid protected leave during any 12-month period for a number of ...

    A Win For Employers: Governor Newsom Vetoes AB 3216

    Despite significant pressure from labor groups and others, Governor Gavin Newsom vetoed Assembly Bill 3216 yesterday.  If it had been signed, AB 3216 would have created a right of recall for laid-off employees of hotels and event venues, as well as those working in building maintenance.  The bill was criticized by the Chamber of Commerce and others who felt that the legislation sought to further burden industries who were already struggling as a result of the pandemic. Although AB 3216 is now off the table, employers should not forget that certain right to recall ordinances have already ...

    AB 2257: California Rewrites Independent Contractor Law…Again

    As promised, Governor Newsom signed Assembly Bill 2257 which effectively rewrites Assembly Bill 5, the flawed law which sought to codify and clarify the California Supreme Court’s ruling in Dynamex Operations West, Inc. v. Superior Court and took effect on January 1, 2020.  AB 2257 became effective upon signature.

    At approximately 14 pages in length, neither employees nor employers are likely to find AB 2257 any less confusing than its predecessor.  It does, however, make it easier for several categories of professions to work as independent contractors if certain conditions are ...

    New Law Extends Workers' Compensation Benefits To COVID-19 Victims

    Governor Newsom has signed Senate Bill 1159, a law that effectively codifies and expands his earlier Executive Order N-62-20, which had expired on July 5, 2020. Effective immediately, this bill defines “injury” for an employee to include illness or death resulting from COVID-19 under specified circumstances. In particular, the employee must have tested positive for or was diagnosed with COVID-19 within 14 days after the employee performed services at the employee’s place of employment and the work must have been performed on or after March 19, 2020, and on or before July 5 ...

    Reminder: Certain COVID-19-Related Layoffs and Shutdowns Require Cal-Warn Act Notice

    When considering an employee layoff or business shutdown, as we reported here, employers should keep in mind that longer layoffs in California will trigger Cal-WARN Act rules. Unlike its federal counterpart, California’s WARN Act has no exception for unforeseen business circumstances and requires every facility that employs or employed 75 or more persons within the last 12 months to give 60 days’ written notice to the employees and certain government officials before any mass layoff that will result in a loss of employment for 50 or more people in any 30 day period. Cal-WARN also ...

    California Enacts Small Business Bills

    On September 9, 2020, California Governor Gavin Newsom signed three bills into law that were designed to provide support for small businesses, including restaurants and other food and beverage companies. 

    SB 1447 authorizes a $100 million hiring tax credit program for qualified small businesses. The hiring credit will be equal to $1,000 for each net increase in qualified employees, up to $100,000 for each qualified small business employer.  To qualify for the credit, the business’ gross income must have declined at least 50% over this time last year.

    AB 1577 excludes Paycheck ...

    California Expands Sick Leave and Mandates Handwashing Breaks for Food Sector Employees

    On September 9, 2020, California Governor Newsom signed AB-1867 as emergency legislation, meaning the law became effective upon his signature, with no waiting period. The law has three distinct parts: it expands California’s supplemental sick leave provisions for food sector workers, creates a new handwashing break requirement for food sector employees, and creates a pilot mediation program for small employers.

    AB-1867 is part of California’s larger effort to fill perceived gaps in paid sick leave mandates due to COVID-19.  In April 2020, Governor Newsom issued Executive ...

    California’s DFEH Issues Online Harassment Prevention Training for Supervisors

    By January 1, 2021, all California employers with five or more employees are required to have provided interactive harassment prevention training to all employees in California, both supervisory and non-supervisory. 

    Recently, California’s Department of Fair Employment and Housing (DFEH) released supervisory on-line harassment prevention training, which can be found here. Supervisory employees must receive at least two hours interactive harassment prevention training, which must be provided every two years, and within six months of hire or promotion to supervisory ...

    California’s New Reopening Plan

    On August 31, 2020, California introduced a statewide blueprint for reopening during the COVID-19 pandemic designed to provide clear guidance and timelines for which industries may safely open. 

    The new system is color-coded and has four tiers, with Tier 1 being the highest risk of community disease transmission and Tier 4 the lowest risk. The four tiers are based on two factors: (1) the county’s positivity rate; and (2) the daily new cases for each 100,000 residents.

    The tiers are outlined below:

    • Tier 1 (purple/widespread): higher than 8% testing positivity rate; more than 7 daily ...
    Employer Alert: U.S. Department of Labor Issues New FMLA Forms

    The U.S. Department of Labor has issued new, revised model Family and Medical Leave Act (FMLA) forms and notices.  The new FMLA forms and notices are intended to be more streamlined and convenient, and they include more explanatory language on various FMLA rights and requirements. 

    As an examples of the new explanatory language, the Rights and Responsibilities Notice adds information on the substitution of paid leave, the medical certifications of a serious health condition define the term “serious health condition,” and the Eligibility Notice defines the terms “spouse” ...

    Nevada Enacts New Hospitality Bill 

    On August 11, 2020, Nevada Governor Steve Sisolak signed Senate Bill 4, which sets new safety standards for the hospitality industry, provides some protections for hospitality workers, and provides for immunity for businesses who comply with statutory requirements. 

    In passing the law, the Governor noted the importance of the travel and tourism industry to the state.  Due to the pandemic, the hospitality industry lost over 130,000 jobs in April and May alone. 

    The law creates new safety requirements for the hospitality industry in Nevada. Public accommodation facilities, which ...

    President Trump Issues COVID-19 Executive Orders Impacting Employers

    On August 8, 2020, U.S. President Donald Trump signed a series of executive orders regarding the COVID-19 pandemic, which may impact certain employers: 

    Deferral of certain payroll tax obligations for the period from September 1, 2020 through December 31, 2020: The order directs the Secretary of the Treasury to defer certain employee payroll taxes for bi-weekly wages that are generally less than $4,000.00 (under approximately $104,000.00 annually).

    This order delays the 6.2% of wages that employers currently withhold from employee wages in every paycheck that is then paid to ...

    Los Angeles County Proposes that Employees Report COVID-19 Violations through Public Health Commissions

    On July 21, 2020, the Los Angeles County Board of Supervisors approved a motion to enforce the monitoring of compliance with County health orders by encouraging workers to directly report health code violations through employee “public health councils.” Supervisors Sheila Kuehl and Mark Ridley-Thomas co-authored the motion, which could have a significant impact by placing employees, rather than public health inspectors, at the front lines of enforcing public health orders.

    The Board noted that workplace transmission has been a significant factor contributing to the ...

    CalSaver Deadline Approaches for Large Companies to Register or Certify as Exempt

    By September 30, 2020, all California companies with more than 100 employees must register with the CalSavers Retirement Savings Program (CalSavers) or certify that they are exempt.

    Employers without employer retirement plans must register to begin offering the state-mandated employer retirement plan to their employees.  Those employers offering retirement plans to their employees need only certify as exempt.  

    The link to the CalSaver website to register or certify as exempt is here.

    Smaller employers have phased-in deadlines to register or certify as exempt. Employers with ...

    Los Angeles County Proposes that Employees Report COVID-19 Violations through Public Health Commissions

    On July 21, 2020, the Los Angeles County Board of Supervisors approved a motion to enforce the monitoring of compliance with County health orders by encouraging workers to directly report health code violations through employee “public health councils.” Supervisors Sheila Kuehl and Mark Ridley-Thomas co-authored the motion, which could have a significant impact by placing employees, rather than public health inspectors, at the front lines of enforcing public health orders.

    The Board noted that workplace transmission has been a significant factor contributing to the ...

    U.S. Department of Labor Issues New Model COBRA Notices and Extends COBRA Deadlines

    The United States Department of Labor (DOL) issued new model COBRA Notices primarily to highlight that an individual may enroll in Medicare instead of COBRA continuation coverage after his or her group health plan coverage ends. The new COBRA model notices point out that it may be advantageous to enroll in Medicare before, or instead of, electing COBRA. They also explain that if an individual is eligible for both COBRA and Medicare, electing COBRA coverage may impact enrollment into Medicare as well as certain costs to the individual. 

    The model general notice for single-employer ...

    California Issues Guidance For Restaurants Providing Outdoor Dining, Takeout, Drive-Through and Delivery 

    Adding to an already impressive list of industry specific guidelines, the California Department of Health and the Department of Industrial Relations/Cal-OSHA have issued an Industry Guidance for Restaurants Providing Outdoor Dining, Takeout, Drive-Through, and Delivery. Restaurants are instructed to consult the COVID-19 County Roadmap for more information on reopening in particular counties within the state. In addition, the guidance reminds all business owners that the guidance is not dispositive and that other state and local health orders and guidelines may apply ...

    Reopening Rollback!

    On July 13, 2020, Governor Gavin Newsom announced a significant rollback of California’s reopening and ordered 30 of the most populous counties in the state to cease indoor operations. The order includes closing indoor operations at malls, offices for non-critical sectors, places of worships, hair salons, fitness centers and personal care services. The affected counties as of July 13, 2020 include Los Angeles, San Diego, Ventura, Santa Barbara and Orange. A full list is available here

    Additionally, Newsom issued a statewide order closing indoor operations for restaurants ...

    Governor Newsom Closes Indoor Dining in Los Angeles County and 18 Other Counties

    In his press conference today, July 1, 2020, Governor Gavin Newsom ordered restaurants in Los Angeles County and 18 other CA counties to cease indoor dining operations for at least the next 3 weeks. The order was in response to a large increase in COVID-19 positivity and hospitalizations in these counties.

    Restaurants may remain open for outdoor dining, pick-up or delivery. On Sunday, June 28th, the State also ordered bars to close in Los Angeles and 6 other counties.

    In addition to indoor dining, wineries and tasting rooms, movie theaters, indoor family entertainment businesses ...

    California DFEH Online Harassment Prevention Training for Non-Supervisors Now Available—and It's Free!

    By January 1, 2021, California employers with five or more employees are required to have provided interactive harassment prevention training to all employees in California, both supervisory and non-supervisory. After considerable delay, California’s Department of Fair Employment and Housing (DFEH) recently released online training to meet the harassment training requirement for non-supervisors. The training is provided at no cost to employers. 

    The non-supervisory online harassment prevention training can be found here. Online training for non-supervisors is ...

    Supreme Court Decides LGBTQ Are Protected From Workplace Discrimination

    In a landmark 6-3 ruling, the Supreme Court of the United States held that workplace discrimination on the basis of an employee’s LGBTQ status is in violation of Title VII of the Civil Rights Act of 1964.  The Court’s opinion can be found here.

    Until now, workers in more than half the states lacked legal protection from employment discrimination based on their LGBTQ status.  The Court’s decision rests on a strict reading of Title VII’s prohibition of discrimination on the basis of “sex”.  It concludes that extending that “sex” prohibition to include discrimination on the ...

    Los Angeles County Issues Reopening Protocols for Non-Essential Businesses

    Los Angeles County issued protocols that the non-essential businesses listed below must follow in connection with reopening. 

    Prior to reopening, each of these businesses must implement and complete the applicable protocol found below, and post a copy of the completed protocol at all public entrances to its facility.

    Additionally, each protocol requires certain signage be posted to alert the public about various COVID-19 safety measures that must be followed, and that similar information be included on the business website.  In some cases, businesses must communicate to their ...

    California Extends Paid Family Leave Benefit Period from 6 to 8 Weeks

    Beginning July 1, 2020, the maximum benefit period under California’s Paid Family Leave (PFL) program will increase from 6 weeks to 8 weeks during any 12-month period.  The PFL program, which is a part of California’s state disability insurance program, provides partial wage replacement benefits to workers who take time off from work:

    • To care for a seriously ill child, spouse, parent, grandparent, grandchild, sibling, or domestic partner; or
    • To bond with a minor child within one year of the birth or placement of the child through foster care or adoption.

    The PFL program does not ...

    California Issues Guidance To Reopen Schools

    Running out of things to do during the COVID-19 crisis? 

    You are in luck. Yesterday the California Department of Education released a lengthy, 55 page guidance on the reopening of public schools. You can find the guidebook for the safe reopening of California's public schools here. Enjoy!

    This blog is presented under protest by the law firm of Ervin Cohen & Jessup LLP. It is essentially the random thoughts and opinions of someone who lives in the trenches of the war that often is employment law–he/she may well be a little shell-shocked. So if you are thinking “woohoo, I just landed some ...

    California Insurance Department Issues Civil Unrest Insurance Coverage Fact Sheet

    To assist California business owners with insurance coverage questions concerning damages relating to the current civil unrest, the Department of Insurance issued a Fact Sheet, found here.

    The Fact Sheet includes the types of coverage that may apply to damages due to civil unrest and tips for businesses with claims.

    This blog is presented under protest by the law firm of Ervin Cohen & Jessup LLP. It is essentially the random thoughts and opinions of someone who lives in the trenches of the war that often is employment law–he/she may well be a little shell-shocked. So if you are thinking ...

    Los Angeles City and County Issue Dine-In Restaurant Guidelines for Reopening

    On Friday, May 29th, both the City of Los Angeles and the County of Los Angeles announced that dine-in restaurants are permitted to reopen. Both the city and county have also issued guidelines for restaurants to follow in the reopening of their dine-in operations.

    The County of Los Angeles’ protocols for the reopening of on-site dining for restaurants and other permanent retail food operations are found here.

    At this time, bars are not permitted to reopen except for food take-out orders, but they are covered in the city’s guidelines for planning purposes. Further, the State of ...

    Los Angeles County Announces Dine-In Restaurants, Hair Salons and Barbershops May Reopen

    Today, May 29, 2020, the County of Los Angeles announced that it will move further into Phase 2 reopening by permitting dine-in restaurants, hair salons and barber shops to reopen.  This decision came after the County learned it received a variance from the State of California to allow this action. Los Angeles County has moved at a much slower pace than most California counties due to its higher number of COVID-19 cases and deaths.

     Los Angeles County also announced it will be posting new restaurant guidelines later today.  Restaurants may open for in-house dining when the County posts ...

    Los Angeles County Enacts COVID-19 Worker Protection Ordinances

    The Los Angeles County Board of Supervisors has followed the lead of the Los Angeles City Council by passing COVID-19 right of recall and worker retention ordinances that are similar to the City of Los Angeles COVID-19 recall and retention ordinances passed on April 29, 2020. The county right of recall ordinance requires certain janitorial, maintenance, security service and hospitality employers, when rehiring, to offer jobs based on seniority to certain workers laid off during the COVID-19 pandemic. Both ordinances are intended to assist workers in unincorporated areas of Los ...

    Governor Newsom Relaxes California Guidelines for Business Reopening

    On Monday, May 18, 2020, Governor Gavin Newson announced relaxed state guidelines for Phase 2 reopening of dine-in restaurants, offices, outdoor museums, shopping centers and malls. The relaxed guidelines would permit 53 of California’s 58 counties to move into Phase 2 reopening. However, with its higher infection and death rate, it is not expected that Los Angeles County will be ready for Phase 2 in the immediate future. 

    Instead of the prior guideline of having no deaths within the last 14 days, under the new state guidelines, COVID-19 hospitalizations cannot increase more than ...

    In Case You Missed It: New State Guidelines For Reopening Dine-In Restaurants, Offices and Malls

    This week Governor Newsom announced new guidelines for the Phase 2 reopening of dine-in restaurants, offices, outdoor museums, shopping centers and malls. The date for reopening of these establishments will be determined by the COVID-19-related circumstances of the county in which the business is located. To reopen dine-in restaurants, offices and malls, a county must receive a variance from the state, through self-certification and state approval. 

    Specifically, a California county seeking to start Phase 2 must prove to the state: that it has no new COVID-19 case per 10,000 ...

    Los Angeles County Issues New Order Permitting Certain Businesses To Reopen

    On Wednesday, May 13, 2020, Los Angeles County issued an updated “Safer at Home” order that amends and supersedes prior Los Angeles County Health Officer orders. The new order is intended to partially move Los Angeles County into the second stage of reopening businesses.

    The businesses now permitted to reopen can do so only for curbside, door side, or other outdoor or outside pick-up, or delivery.  Members of the public cannot be permitted inside these businesses.  Businesses permitted to open on this basis are retailers not located in indoor malls or shopping centers, and ...

    DOL Extends COBRA Deadlines In Response to COVID-19 National Emergency

    On May 4, the U.S. Department of Labor (DOL) and Internal Revenue Service (IRS) jointly issued a new final rule that temporarily extends time frames in which eligible employees can elect COBRA health insurance coverage and begin making COBRA premium payments. The final rule extends COBRA deadlines to 60 days after the end of the declared COVID-19 national emergency, or a different date if the DOL and IRS provide a different date in future guidance.

    To help participants and beneficiaries understand the new rule, the DOL also posted a new set of FAQs.     

    This blog is presented under protest by ...

    California Extends Workers’ Compensation to COVID-19

    Earlier today, Gov. Gavin Newsom signed an executive order extending workers’ compensation insurance coverage to essential workers who test positive for coronavirus or are diagnosed with COVID-19 by a physician. The order establishes a rebuttable presumption that any essential worker contracted the virus on the job and is, therefore, eligible for workers’ compensation benefits. This presumption effectively places the burden of proof on companies or insurers to prove that the essential worker did not get sick at work in order to permissibly deny coverage. The order applies ...

    Los Angeles Enacts COVID-19 Right of Recall and Retention Ordinances

    On Wednesday, April 29, 2020, the Los Angeles City Council passed a COVID-19 Right of Recall Ordinance requiring certain hospitality, janitorial, property management and tourism employers, when rehiring, to offer jobs based on seniority to certain workers laid off during the COVID-19 pandemic.  At the same time, the council also passed a COVID-19 Worker Retention Ordinance. Both ordinances are intended to assist workers in sectors which have been especially hard hit by the coronavirus crisis and both ordinances had been approved in concept in the prior week subject only to ...

    Large Food Sector Employers Must Provide Supplemental Paid COVID-19 Sick Leave

    To address fears that food sector workers are more likely to work when sick, Governor Gavin Newsom recently issued Executive Order N-51-20, which requires large food sector employers (500+ employees in U.S.) to provide up to 2 weeks of supplemental paid sick leave to workers, including independent contractors, who are unable to work due to the following COVID-19-related reasons:

    • the worker is subject to a federal, state, or local quarantine or isolation order related to COVID-19;
    • the worker is advised by a health care provider to self-quarantine or self-isolate due to concerns ...
    Action Alert: Los Angeles County Right of Recall and Worker Retention Ordinance

    On Tuesday, May 12th, the Los Angeles County Board of Supervisors will be considering a countywide Right of Recall and Worker Retention ordinance. As with the Citywide Right of Recall and Worker Retention ordinances, these policies would negatively impact businesses, prevent them from making decisions based on their financial situation, and lengthen our road to recovery after the COVID-19 pandemic.

    Click here to read the coalition letter from the Valley Industry & Commerce Association.

    Call and email the Board of Supervisors

    Supervisor Hilda Solis: First District; ...

    Los Angeles County Expands Paid Sick Leave Requirements For COVID-19

    In a move which largely mirrors the steps taken by the City of Los Angeles, the Los Angeles County Board of Supervisors has voted to extend certain paid sick leave requirements of the Families First Coronavirus Response Act to employees working within Los Angeles County for private employers that employ 500 or more persons in the United States. The ordinance is effective immediately and will expire on December 31, 2020. 

    The ordinance applies to all persons who perform work for a covered employer within the County of Los Angeles and specifies that all such persons are presumed to be ...

    Los Angeles City Council Votes for Worker Retention and Recall Rules

    On Wednesday, April 22nd, the Los Angeles City Council voted to have a right of recall ordinance drafted that would require certain hospitality, janitorial, property management and tourism employers when rehiring to notify workers laid off during the COVID-19 pandemic.

    Under the proposed ordinance, a business would be required to provide notices to laid-off workers that it is rehiring, and to rehire based on seniority. Workers would have a 10-day period in which to respond, and an employer would have 15 days to respond to employee claims that they had inadequate opportunity to be ...

    Taking Employees’ Temperatures During the COVID-19 Pandemic

    Employers can take employees’ temperatures to respond to and manage the COVID-19 pandemic. The Equal Employment Opportunity Commission has stated in its updated guidance that the COVID-19 crisis permits employers to measure employees’ body temperatures before allowing them to enter the worksite. Indeed, the Centers for Disease Control recommends in its community mitigation framework that workplaces in areas with “minimal to moderate risk” implement regular temperature and respiratory checks. 

    How to Conduct Temperature Checks

    As for the precise temperature to ...

    Action Alert - The LA City Council Is Attempting to Place Unprecedented Hiring Rules on the Private Sector

    As we recently reported, the Los Angeles City Council is considering implementing hiring restrictions and requirements on the private sector.  If passed, these ordinances with exponentially increase the difficulties already faced by businesses throughout Los Angeles as a result of the COVID-19 crisis.  There are several motions pending, each of which will adversely impact employers.  Given the importance of the issue, we are reposting the following from the Beverly Hills Chamber of Commerce:

    Action Alert! On Wednesday, April 22 at 10 am, the Los Angeles City Council is meeting to ...

    Action Alert: Los Angeles City Council Wants to Assert Control Over Businesses

    The message below has been reposted from the Valley Industry & Commerce Association.

    On Wednesday, April 22, the Los Angeles City Council will be considering a Right of Recall ordinance that is exclusively directed towards businesses in the hospitality industry - including hotels, janitorial, stadiums, airport services and event centers.

    Hospitality Right of Recall and Worker Retention Ordinance

    The Hospitality Recall Ordinance would:

    • Require businesses that have discharged employees to offer those discharged employees all positions which become available for which the ...
    Coronavirus And The Reluctant Employee

    You have a business that is permitted to continue operations and is not subject to a “stay at home” order.  You have informed employees of this fact.  You have even provided employees with a letter setting forth specific information on why they are allowed to continue working and traveling to and from work to show authorities or anyone else who might ask.  Nevertheless, you have one or more employees who do not want to work because of COVID-19 and are asking to stay home.  What do you do?

    If you are a business with 500 or fewer employees, you first need to find out why these employees are asking to ...

    Calculating Paid Leave Under The Families First Coronavirus Response Act

    To calculate the amount to be paid for employee leave under the Families First Coronavirus Response Act, it is clear that employees who take advantage of FFCRA paid leave must be paid what they would ordinarily earn in a workweek. Their ordinary workweek earnings are based on their regular rate of pay, including the base rate for any overtime hours worked, but not any premium pay. An employee should only receive paid leave for the hours they are normally scheduled to work. Accordingly, an employer must first determine both the regular rate of pay and the appropriate work schedule in order ...

    What Small Businesses Need To Know About The Families First Coronavirus Response Act

    If your business has fewer than 50 employees, you may qualify for the small business exemption to a portion of the Families First Coronavirus Response Act (FFCRA).  Specifically, small businesses with fewer than 50 employees may be exempt from the requirement to provide leave due to school closings or childcare unavailability if those FFCRA leave requirements would jeopardize the viability of the business as a going concern.  In other words, the small business exemption only excuses the employer from providing paid leave for reason no. 5 on the official FFCRA Notice, which all ...

    City Council Approves Expansion Of Paid Sick Leave Requirements For COVID-19

    The Los Angeles City Council has voted to extend the requirements of the Families First Coronavirus Response Act to employees working within the City of Los Angeles for employers that employ 500 or more persons in the United States. The ordinance applies to all employees who have been employed with the same employer from February 3, 2020 through March 4, 2020, and provides up to 80 hours of paid sick leave benefits to full-time workers calculated based on the employee’s average two week pay over the period of February 3, 2020 through March 4, 2020. Employees who work less than 40 hours per ...

    My grandmother used to say that one of the biggest lies told in America was the statement: “I’m from the government, and I’m here to help”. Grandma was a bit of a pessimist. But the Department of Labor has issued, and continues to add segments to, a very helpful and rather lengthy question and answer page that provides guidance for employers on implementing the paid sick and family leave requirements under the new Families First Coronavirus Response Act, set to take effect on April 1, 2020. This information is particularly useful in light of the fact that the DOL has not yet provided ...

    CARES Act Provides Relief For COVID-19 Individuals and Businesses

    At 880 pages in length, “comprehensive” does not seem to do it justice. But the Coronavirus Aid, Relief and Economic Security Act is, in a word, comprehensive. Coming on the heels of the Families First Coronavirus Response Act which focused primarily on relief for employees, the CARES Act seeks to provide both individuals and businesses with immediate relief, and a path forward, as we look to a future following the COVID-19 pandemic.

    Individual Relief

    Many individuals will receive a check directly from the government. Specifically, individual adults making less than $75,000 in ...

    Special Action Alert  - Oppose LA City Council's Attempt to Require Companies to Hire and Layoff Based on Seniority

    The below message has been posted with permission from the Beverly Hills Chamber of Commerce. 

    Tomorrow, Friday, March 27th, the Los Angeles City Council is having an emergency remote meeting to consider a new policy to require businesses to lay-off and rehire employees businesses based on seniority.  Under this proposal, businesses need to have “just cause” to terminate an employee, businesses must lay off employees based on seniority and if businesses recall employees it must be done based on seniority.

    Click here to see Item No. 2 on the LA City Council ...

    Employers Must Use This Notice for the Families First Coronavirus Response Act

    The Department of Labor released the required notice for the Families First Coronavirus Response Act today.  All employers covered by the FFCRA must post the notice in a conspicuous place to advise all current employees of their rights under the Act.  The FFCRA, which was passed by Congress and signed by President Trump last week, expands employee leave laws in response to the COVID-19 crisis.  (For more information on the FFCRA, see earlier “What Employers Need To Know About The Families-First Coronavirus Response Act” article on this blog.) 

    Since many workforces are currently ...

    To assist California employers in understanding the possible application of benefits available to workers in response to the COVID-19 crisis under both state and federal law, we provide the following handy chart:

    Click Here to view a print-friendly version of the chart. 

    COVID-19: How to Determine If Your Business Should Remain Open 

    There is a fair amount of confusion among California businesses regarding Governor Newsom’s “stay home” order and which facilities should remain open.  Unfortunately, Executive Order N-33-20 does not provide much guidance. It does, however, refer to the list of federal government's critical infrastructure sectors posted by the Department of Homeland Security and except those individuals “needed to maintain the continuity of operations” of those sectors. In addition, the state’s website clarifies that critical government services, schools, childcare, and ...

    What Employers Need To Know About The Families First Coronavirus Response Act

    The coronavirus pandemic has presented challenges for employers trying to remain responsive to the crisis but also struggling to absorb the burden it has imposed on their businesses. With much anxiety, employers have also been anticipating a new law, H.R. 6201, to go into effect that would expand family and medical leave requirements to cover COVID-19. As of yesterday, Congress passed and President Trump signed the final version of H.R. 6201, titled the Families First Coronavirus Response Act.

    The Act will take effect on April 1, 2020 and will remain effective until December 31 ...

    Coronavirus And The Magic Of The Furlough

    As employers struggle to cope with the impact of coronavirus 2019 (COVID-19), we have encountered a surprising number of employers who have been led to believe that a “furlough” is an employer option that can be implemented without regard for various laws that might otherwise apply. It is not. To be blunt, while the term “furlough” seems to be a more employee-friendly word for what many employers are doing, there is no magic to it. Indeed, until the California Legislature or Congress pass more comprehensive COVID-19 relief legislation, employers must still comply with all ...

    Urgent: Governor Newsom Issues Executive Order to Address Cal-Warn Concerns In Coronavirus Crisis 

    In an effort to address some of the issues presented by California’s WARN Act in connection with the COVID-19 crisis, Governor Newsom has issued Executive Order N-31-20 partially suspending certain provisions of Cal-WARN.  As we reported here, the wording of California’s WARN Act exposes employers temporarily closing or engaging in layoffs due to COVID-19 to liability for back pay, the value of benefits, penalties of $500 per day and attorneys’ fees.  Unlike the federal WARN Act, California’s version has no exception for unforeseen business circumstances and requires ...

    What Employers Should Know About The Coronavirus 

    Given the level of concern regarding the coronavirus, providing employees with reliable information and establishing both a prevention plan and a plan to follow if illness occurs is a good way to avoid panic and help ensure a healthy workplace. 

    The Centers for Disease Control (CDC) recently held a press conference to provide an update on the current status of the coronavirus (COVID-19). The CDC published a fact sheet as well as steps to follow if you are sick with the coronavirus. Both publications can be distributed to employees along with a memo outlining steps for prevention and ...

    Proposed Fair Scheduling Act of 2020 Will Impose Fines and Additional Pay for the Failure to Provide Advance Notice of Worker Schedules

    Senate Bill 850, also referred to as the Fair Scheduling Act of 2020, would require grocery stores, restaurants and retail stores to provide employees with 21-day work schedules, at least seven calendar days in advance.

    Employers must pay a worker not exempt from overtime a “modification pay” for each previously scheduled shift that the employer cancels or moves to another date or time, each previously unscheduled shift that the employer requires an employee to work, and for each on-call shift for which an employee is required to be available but is not called into work.  If less ...

    California Legislature Scrambles to Amend AB 5, The Independent Contractor Disaster

    Assembly Bill 5 became effective on January 1, 2020. The law purports to prevent the misclassification of employees as independent contractors by codifying the ABC test established by the California Supreme Court case of Dynamex Operations West, Inc. v. Superior Court of Los Angeles (2018) 4 Cal.5th 903, along with several other tests and requirements which apply to various types of business relationships. In short, the law is very confusing.  Indeed, by all accounts, AB 5 is flawed, perhaps seriously so. Several lawsuits have been filed to challenge its terms and the California ...

    New Law Requires that California Employers Provide Two Different Notices of Any Deadline to Withdraw Funds from A Flexible Spending Account

    Effective January 1, 2020, Assembly Bill 1554 requires that California employers notify employees who participate in a flexible spending account, including a dependent care flexible spending account, a health flexible spending account or adoption assistance flexible spending account, of any deadline to withdraw funds before the end of the plan year. More specifically, the law requires that two different forms of notices be delivered, one of which may be electronic. The forms of notice may include, but are not limited to the following: email, telephone, text message, postal mail ...

    Breaking News: Federal Court Grants Preliminary Injunction To Block AB 51 Employment Arbitration Law

    U.S. District Court Judge Kimberly Mueller just granted a preliminary injunction to block Assembly Bill 51 throughout future court proceedings, which will examine the enforceability of the new law.  This is welcome news for California employers because it means that the status quo remains in effect: Employers can continue to require arbitration agreements as a condition of employment for their employees unless and until the court rules otherwise.   

    To recap the brief but controversial history of this new law, AB 51 was originally supposed to become effective on January 1, 2020 but ...

    A Reminder: The IRS Mileage Rates Have Changed

    The 2020 mileage rates used to calculate the deductible costs of operating an automobile for business, charitable, medical or moving purposes have decreased from last year, or remained unchanged. Specifically, as of January 1, 2020, the standard mileage rates for the use of a car (also vans, pickups or panel trucks) are:

    • 57.5 cents per mile driven for business use, down one half of a cent from the rate for 2019;
    • 17 cents per mile driven for medical or moving purposes, down three cents from the rate for 2019; and
    • 14 cents per mile driven in service of charitable organizations.

    The IRS ...

    Update: AB 51 Employment Arbitration Law Remains On Hold

    Assembly Bill 51, the controversial law that would have prevented employers from requiring employees to enter arbitration agreements, has been put on hold until at least January 31, 2020.  As reported in this blog last week, the law was supposed to go into effect on January 1st, but before that could happen U.S. District Judge Kimberly Mueller issued a temporary restraining order (TRO) pending a hearing on a motion brought by a coalition of businesses that sought to prevent the bill from taking effect.

    The motion hearing took place last Friday, January 10th.  During the hearing, Judge ...

    Judge Orders Emergency Halt of AB 5 for Truck Drivers

    A federal judge issued a temporary restraining order on Tuesday, December 31st, to halt enforcement of California’s Assembly Bill 5 (AB 5), regarding truck drivers, only hours before the law went into effect on January 1, 2020.  AB 5, often referred to as the gig worker law, codifies and expands the “ABC” test set forth in Dynamex Operations West, Inc. v. Superior Court, making it much harder for companies to claim workers are independent contractors.

    Although AB 5 exempts a number of professions and services from the ABC test, truck drivers are not included among the exemptions ...

    Judge Orders Emergency Halt of AB 51 Employment Arbitration Law

    A federal judge issued a temporary restraining order on Monday, December 30, to halt enforcement of California’s Assembly Bill 51 (AB 51), which was scheduled to go into effect on January 1, 2020. AB 51 would have prevented employers from requiring employees to enter arbitration agreements as a condition of their employment for claims brought under California’s Fair Employment and Housing Act and the Labor Code. AB 51 also would allow workers to pursue damages and attorneys’ fees and open employers up to criminal enforcement of up to six months imprisonment for violating AB ...

    SB 707: California Continues to Attack Arbitration Agreements

    Although popular with employers as a method to expedite the resolution of disputes and reduce costs, arbitration is unpopular with plaintiff’s lawyers and, apparently, the California Legislature. As we wrote about here, Assembly Bill 51 prohibits employers from requiring that employees submit disputes to binding arbitration as a condition of employment. The attack on arbitration agreements continues with Senate Bill 707, set to become law on January 1, 2020. 

    SB 707 applies to employment or consumer arbitration agreements and requires that the drafting party pay any fees and ...

    20 Steps To Avoid Employment Lawsuits

    I have been asked by more than one frustrated California employer how to avoid or reduce employment lawsuits. It is not an easy question to answer as there are many variables that go into generating employment law claims. However, in no particular order, what follows is a list of strategies and steps to consider to implement an effective claim reduction plan:

    1. Document, document, document: Documenting employee issues and the employer’s response is a big part of disproving claims. Indeed, a consistent practice of documenting issues can even be used to indicate that something did not ...
    AB 749: Because California Needs More Lawsuits

    Assembly Bill 749 is an unnecessary law that will only serve to incentivize more lawsuits between former employees and employers.  Effective on January 1, 2020, AB 749 will prohibit an agreement to settle an employment dispute from containing a provision that prohibits a settling party from working for the employer against which he or she filed a claim, or any parent company, subsidiary, division, affiliate, or contractor of the employer. The law states that provisions in settlements signed after January 1, 2020 will be void as a matter of law and against public policy.

    AB 749 seems ...

    Unlimited Vacation Policies: Are They Right For Your Business?

    I am frequently asked about the pros and cons of having an unlimited vacation policy. To begin, I do not think it works for every category of worker, nor does it work for every type of company. When it does work, it usually is applied only to executive or professional types of workers, and only then in an atmosphere where such workers are employed in situations where co-workers or clients depend on consistent performance, such that there is always pressure to perform and deliver services in a timely fashion. Workers who work autonomously for extended periods of time may not be as ...

    California Court of Appeal Concludes Premium Wage Must Be Paid at the Base Hourly Rate

    In Ferra v. Loews Hollywood Hotel, LLC, the California Court of Appeal considered the method for determining the amount of the one hour of pay at the employee’s “regular rate of compensation” for each workday in which an employer fails to provide a meal, rest or recovery period as required by Labor Code Section 226.7. In recent years, plaintiffs have argued in class actions that the method for determining the “regular rate of compensation” under 226.7 must be the same as that used for calculating the “regular rate of pay” for overtime purposes under Labor Code Section 510 ...

    California Bans Mandatory Employment Arbitration Agreements

    Effective January 1, 2020, Assembly Bill 51 will prohibit employers from requiring employees to waive forum or procedure rights under the Fair Employment and Housing Act or the Labor Code in favor of arbitration as a condition of employment, continued employment or the receipt of any employment-related benefit. AB 51 also prohibits an employer from retaliating against any employee who refuses to consent to the waiver of such rights. For the sake of clarity, the new law states that an agreement that permits an opt-out of a waiver or which requires any affirmative action on the part of the ...

    Employer Alert:  AB 1804 Requires Immediate Reporting of Serious Occupational Injury, Illness or Death By Phone or Online

    On August 30, 2019, Governor Newsom signed into law AB 1804, which requires employers to immediately report any serious occupational illness, injury or death to the California Division of Occupational Safety and Health, by telephone or by an online mechanism to be established for this purpose.  Until the online mechanism is available, employers may report by telephone or email.  Failure to report is subject to a $5,000 civil penalty.  This new law becomes effective January 1, 2020.

    This requirement is in addition to the existing employer requirement to report any workplace injury or ...

    Great News for Employers: The Harassment Training Deadline Has Been Extended!

    On August 30, 2019, Governor Newsom signed into law SB 778, which delays by one year the new harassment training requirement imposed by last year’s SB 1343.  As a result, employers with five or more employees or independent contractors will have until January 1, 2021, rather than January 1, 2020, to provide harassment training to all managerial and non-managerial employees within six months of hire or promotion.  In addition, harassment training must be provided to temporary or seasonal employees, employees hired for less than six months, independent contractors, volunteers ...

    Partner Kelly Scott Quoted in Law360 Regarding the CROWN Act and Its Impact on Employers

    Kelly O. Scott, Partner and head of Ervin Cohen & Jessup’s Employment Law Department, was recently quoted in the Law360 article entitled, “Hair Bias Bans Mean Employer Grooming Rules Need Review.” The article takes a closer look at the CROWN Act (Create a Respectful and Open Workplace for Natural Hair), which was signed into California law on July 3, 2019, by Governor Gavin Newsom. California and New York, which enacted a similar law, became the first two states to recognize the connection between racial discrimination and policies that limit appearances, including natural ...

    California Court of Appeal Agrees Employer Does Not Have To Pay For Shoes...This Time

    Krista Townley was a server at BJ’s Restaurants, Inc. As a server, Townley was required to wear black, slip-resistant close-toed shoes pursuant to company policy.  Townley purchased a pair of canvas shoes that complied with the policy.  She was not reimbursed by BJ’s. What happened next?  You guessed it: Townley filed a class and representative action under the Private Attorneys General Act of 2004 (Lab. Code, § 2698 et seq.) which sought civil penalties on behalf of herself and other "aggrieved employees" for Labor Code violations.

    In her lawsuit, Townley claimed that an ...

    Employer Reminder: California Employers Without Employee Retirement Plans Must Offer State Retirement Program

    Beginning as early as June 30, 2020, California employers with 5 or more California-based employees not already offering an employer-sponsored retirement plan will have to begin offering a retirement savings program, either through the private market or by facilitating access to CalSavers, the state-run program.

    The CalSavers program, established under SB 1234 in 2012, is intended to assist the estimated 7.5 million California employees without employer retirement savings plans. A pilot program was undertaken in late 2018, and beginning July 1, 2019, eligible ...

    Additional EEO-1 Data Must Be Submitted By September 30

    Employers with at least 100 employees, and federal contractors with contract of at least $50,000 and 50 or more employees, are well aware of the EEO-1 report requirement. EEO-1 reports are due on March 31 of each year and include data on employee race/ethnicity and gender, called “Component 1” data.  Component 1 data is submitted through a web portal maintained by the Equal Employment Opportunity Commission and is used by the EEOC and the Office of Federal Contract Compliance Programs to gauge compliance with federal equal opportunity laws. This year’s deadline was extended ...

    Employer Alert: New Law Prohibits Employment Discrimination Based on Natural Hairstyles

    On July 3, 2019, Governor Gavin Newsom signed into law Senate Bill 188, the Crown Act (Create a Respectful and Open Workplace for Natural Hair).

    The text of the law includes an explanation for its purpose. In pertinent part, SB 188 states that the “history of our nation is riddled with laws and societal norms that equated ‘blackness,’ and the associated physical traits, for example, dark skin, kinky and curly hair to a badge of inferiority, sometimes subject to separate and unequal treatment.” It goes on to state that the societal understanding of “professionalism was, and ...

    Employer Alert: City of Los Angeles Minimum Wage Increase on July 1st

    On July 1st, the City of Los Angeles will raise the minimum wage for employers with at least 26 employees to $14.25, and for employers with fewer than 26 employees to $13.25.

    In determining whether this increase applies to a particular employee, employers should know that it is not where an employee lives, nor where an employer is based, that determines the minimum wage that must be paid.  Rather, it is where the employee works that matters.  All employees working in a particular week for at least 2 hours within the City of Los Angeles are entitled to payment of the applicable minimum wage under ...

    Department of Fair Employment and Housing Issues New Family Leave Form

    The California Department of Fair Employment and Housing (DFEH) recently issued a new Certification of Health Care Provider form that employers may use for medical certification when an employee requests leave under the California Family Rights Act (CFRA) or the Family and Medical Leave Act (FMLA), due to the employee’s or the employee’s family member’s serious health condition.

    This form is particularly useful to California employers for the reason that, unlike the Department of Labor FMLA health care provider certification forms, the DFEH form excludes questions ...

    Employer Alert: Expansion of Reporting Time Pay Rule

    A recent California Court of Appeal ruling significantly expands the conditions under which the reporting time pay rule in California will apply. Skylar Ward v. Tilly’s, Inc. involved retail clothing store workers who were assigned on-call shifts, but did not know if they must report to work for each shift until they made a required call to the employer two (2) hours in advance of the shift.

    Under all California Wage Orders, including Wage Order No. 7 that applies to retail workers, reporting time pay must be paid for each workday an employee is required to report for work and does ...

    Department of Fair Employment and Housing Issues Harassment Training Toolkit

    Senate Bill 1343, which became effective on January 1, 2019, requires that every California employer with at least five employees or independent contractors provide two hours of interactive harassment and abusive conduct prevention training for their managers and supervisors, and conduct this training thereafter every two years and within six months of a person’s placement into a supervisory or management position. SB 1343 also requires that these employers provide interactive harassment training to their non-supervisory employees of at least one hour, and thereafter ...

    Good News for Employers: Express Consent Required for Class Arbitration

    Last year, the United States Supreme Court ruled that class action waivers in employment arbitration agreements are enforceable.  But, the ruling did not address an agreement that is silent or ambiguous regarding the intent to proceed as a class.

    This issue was recently resolved by Lamps Plus v. Varela, in which the United States Supreme Court held that under the Federal Arbitration Act, a court may not compel class arbitration unless the parties have expressed their clear consent.

    This case involved an arbitration clause that was ambiguous regarding the parties’ intent to ...

    Department of Labor Proposes New Minimum Salary Levels

    The United States Department of Labor (DOL) recently announced a proposal to increase the minimum salary required to qualify as exempt from overtime under the federal Fair Labor Standards Act (FLSA). The new rule would apply to the executive, administrative, and professional exemptions. Specifically, the proposed increase would raise the minimum annual salary required for exempt status from $23,360 to $35,308, and increase the weekly salary rate from $455 to $679.  Employers would be permitted to include “nondiscretionary bonuses and incentive payments” for up to 10% of the ...

    A Reminder: The IRS Mileage Rates Have Changed

    The 2019 mileage rates used to calculate the deductible costs of operating an automobile for business, charitable, medical, or moving purposes have increased from last year, or remained unchanged. Specifically, as of January 1, 2019, the standard mileage rates for the use of a car (also vans, pickups, or panel trucks) are:

    • 58 cents per mile for business miles driven, up three and one-half cents from 2018;
    • 20 cents per mile driven for medical or moving purposes, up two cents from 2018; and
    • 14 cents per mile driven in service of charitable organizations.

    The IRS standard mileage rate for ...

    Employer Alert: Minimum Wage Increases

    On January 1, 2019, the state minimum wage increased to $12.00 per hour for employers with at least 26 employees, and $11.00 per hour for smaller employers.  The state minimum wage governs the exempt employee threshold salary, which has increased accordingly.  The new minimum salary for employees exempt from overtime is $49,920 annually for employers with at least 26 employees, and $45,760 annually for employers with fewer than 26 employees.

    Further, a number of California municipalities will raise their minimum wage rates on July 1, 2019.  Employers should take care to note these ...

    Employer Alert: New Compensation Threshold for Computer Software Overtime Exemption

    Effective January 1, 2019, the California Department of Industrial Relations issued a new compensation threshold for exempt computer software employees, reflecting an increase of 4.2% from last year.

    To qualify for the overtime exemption, computer software employees must be paid a salary of at least $94,603.25 annually ($7,883.62 monthly), or an hourly wage of at least $45.41.  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 ...

    Employer Alert:  SB 1343 Extends Harassment Training Requirements to Small Employers and Non-Supervisory Employees

    Under current California law, organizations with 50 or more employees or independent contractors must provide two hours of interactive harassment and abusive conduct prevention training for their managers and supervisors every two years and within six months of placement into a supervisory or management position.  The training required must include information and practical guidance regarding the federal and state statutory provisions concerning the prohibition against, and the prevention and correction of, sexual harassment, as well as the remedies available to victims ...

    Employer Alert: New Fair Credit Reporting Act Summary of Consumer Rights Form Required for Background Checks

    Beginning September 21, 2018, employers must use the newly issued model Summary of Your Rights Under the Fair Credit Reporting Act form (or their own form based on the model) when providing the required written notice to an employee or a job applicant that a background check will be conducted. The revised federal form is also required if an employer plans to take adverse action against an employee or applicant based on the report.  

    The revised form includes notification of the newly granted right under the Economic Growth, Regulatory Relief and Consumer Protection Act passed by Congress ...

    National Labor Relations Board Proposes Relaxed Rule on Joint Employment

    On September 13th, the National Labor Relations Board (NLRB) announced that it will propose a new joint employer rule that represents a relaxation of the current standard for determining if businesses are joint employers.  Under the current rule, known as the Brown-Ferris rule, the definition of joint employer is expansive, so that an employer having only indirect or potential control over another employer’s workers can be found to be a joint employer. 

    Under the proposed rule, an employer may be found to be a joint employer of another employer’s employees only if it possesses and ...

    Employer Alert: U.S. Department of Labor Updates FMLA Forms

    The U.S. Department of Labor recently issued updated model Family and Medical Leave Act (“FMLA”) forms, with an expiration date of August 31, 2021.  Other than the expiration date, these forms are identical to the prior forms expiring on August 31, 2018. The newly issued forms with the August 31, 2021 expiration date should be used in place of the prior forms.  Note that the expiration date is found on the top-right corner of the forms. Note also that  the Certification of Health Care Provider for Employee’s Serious Health Condition should be modified by California employers to avoid ...

    California close to Banning Employment Arbitration Agreements 

    The California Legislature is poised to dispense with a cost-effective and expedient method of resolving employment disputes.  Specifically, Assembly Bill 3080 seeks to prohibit any person or business from conditioning employment, or any employment-related benefit, on any applicant for employment or employee agreeing to the binding arbitration of disputes that involve any alleged violation of any provision of the California Fair Employment and Housing Act.  The bill also includes a prohibition against arbitration agreements that would require an employee to opt out of ...

    Assembly Bill 2613 Seeks to Expand Personal Personal Liability for Individual Managers in California 

    Assembly Bill 2613 seeks to expand the persons potentially liable to any “person acting on behalf of an employer.” More specifically, liability would attach when an employee is not paid sums owed when due under Labor Code sections 201.3, 204, 204b, 204.1, 204.11, 204.2, 205, and 205.5, and the failure to pay is not the result of “an isolated or unintentional payroll error due to a clerical or inadvertent mistake.” AB 2613 would amend Labor Code section 210 to require an employer or person acting on behalf of an employer to pay a penalty of $200 to each and every affected employee for ...

    Employer Alert: Updated Affordable Care Act Notices Replace Earlier Versions

    The U.S. Department of Labor recently issued updated Affordable Care Act model notice forms (OMB No.1210-0149).  The new forms contain an expiration date of 5/31/2020, and replace all earlier versions.  Employers must provide these notices, which inform employees whether the employer offers a health plan, to all new employees within 14 days of hire.

    There are two versions of the model notice form: one is for employers who do offer a health plan to some or all employees, while the other is for employers who do not offer a health plan.  Both versions of the updated form can be found here.

    Proposed Law will Make it Easier to File Discrimination and Harassment Claims Against California Employers

    Senate Bill 1300 (Jackson) seeks to expand liability in discrimination and harassment by lowering the legal standard for legal claims.  Currently, only harassment that is “severe or pervasive” is actionable.  As such, the law is not designed to allow claimants to bring claims based on a single offensive remark or act.  SB 1300 creates a new private right of action for failure to prevent harassment or discrimination which is written to significantly lower that standard by providing that a claimant need only prove “that the conduct would meet the legal standard for harassment or ...

    Selling Real Property In A Federal Receivership

    Q: I am a federal receiver. One of the assets in the estate is a small office building. I want to list it with a broker and sell it. My attorney told me that before I can sell the property through a broker I have to have the court appoint three (3) appraisers to appraise the property and then the sales price has to be at least two-thirds (2/3) of the appraised value. This is madness. Is there any way around this? Do I need a new attorney?

    A: No, you don’t need a new attorney. Your attorney correctly informed you of some of the requirements for a federal receiver to sell real property at a private sale ...

    Great News for Employers: U.S. Supreme Court Upholds Arbitration Class Action Waivers

    On Monday, May 21, 2018, in a 5-4 opinion, the United States Supreme Court issued a long-awaited decision in the case, Epic Systems Corp. v. Lewis, on the issue of the enforceability of class action waivers in arbitration agreements that bar employees from joining together in class action claims, holding such waivers to be enforceable.  Employers now have the benefit of including class action waivers in arbitration agreements without the uncertainty of the last several years, when jurisdictions differed regarding their enforceability.

    The challenge to enforceability in the case ...

    Are All Independent Contractors Now Employees? 

    Last week the California Supreme Court issued a decision that changes the way California employers do business.  In Dynamex Operations West, Inc. v. Superior Court,  the Court held that a three factor test called the “ABC test” must be applied to determine if an independent contractor is actually an employee subject to the California Wage Orders.  The Court described the test as follows: “Under this test, a worker is properly considered an independent contractor to whom a wage order does not apply only if the hiring entity establishes: (A) that the worker is free from the control and ...

    EEOC Extends EEO-1 Filing Deadline

    All employers with 100 or more employees, affiliated companies who collectively employ 100 or more employees, and government contractors with 50 or more employees are required to file EEO-1 reports annually with the Equal Employment Opportunity Commission or, in the case of government contractors, the Office of Federal Contract Compliance Programs.  The report requires company employment data to be categorized by race/ethnicity, gender and job category.  These reports are usually due by March 31st of the next calendar year.  For 2017, however, the filing deadline has been ...

    A Reminder: The IRS Mileage Rates Have Changed

    The 2018 mileage rates used to calculate the deductible costs of operating an automobile for business, charitable, medical or moving purposes have increased slightly from last year, or remained unchanged. Specifically, as of Jan. 1, 2018, the standard mileage rates for the use of a car (also vans, pickups or panel trucks) are:

    • 54.5 cents per mile for business miles driven, up one cent from 2017;
    • 18 cents per mile driven for medical or moving purposes, up one cent from 2017; and
    • 14 cents per mile driven in service of charitable organizations

    The IRS standard mileage rate for business is ...

    A Reminder: Home Care Workers Will Be Entitled to Paid Sick Leave Beginning July 1, 2018

    Under California’s Healthy Workplaces, Healthy Families Act of 2014, in-home supportive services (IHSS) workers were specifically excluded from eligibility to receive paid sick leave.  However, beginning July 1, 2018, Senate Bill 3, enacted in 2016, will end the exclusion and extend paid sick leave to IHSS workers. IHSS workers will initially not be entitled to reach the three days or 24 hours of paid sick leave other eligible California workers may receive.  Rather, SB 3 provides that IHSS workers may earn a “full amount” of paid sick leave in which will be increased as the state ...

    Assembly Bill 1710 Expands Military Personnel Employment Protections

    Effective January 1, 2018, AB 1710 amends Section 394 of the Military and Veterans Code by including protection against discrimination in all terms, conditions or privileges of employment due to membership or service in the military.  This applies to all military service and personnel including the National Guard, and expands existing anti-discrimination measures for military personnel.

    The new law also includes criminal and civil penalties for violations.

    Employers are reminded to train employees to comply with this law and other existing anti-discrimination laws ...

    Sexual Harassment Training Must Now Include Gender Identity, Gender Expression and Sexual Orientation

    In light of the substantial media attention given to sexual harassment issues in recent months, employers should anticipate new legislation on this topic. Senate Bill 396, however, was drafted before the increased focus on these issues began.  As of January 1, 2018, the enactment of the Transgender Work Opportunity Act (SB 396) makes California the first state to require that harassment trainings cover the topics of gender identity, gender expression and sexual orientation.

    The Department of Fair Employment and Housing (DFEH) already required sexual harassment training for ...

    New and Proposed Tax Legislation Present New Difficulties for Employers Attempting to Settle Sexual Harassment Claims

    Most employers have heard of the Tax Cuts and Jobs Act, signed into law on December 22, 2017, and have contemplated what it may mean for them.  What has been largely overlooked, however, is a denial of deduction buried deep in section 162(q) of the Internal Revenue Code, which may have a significant impact on employers’ ability to settle lawsuits based on sexual harassment or sexual abuse.  Referred to as the “Harvey Weinstein Tax” (even though it is not a tax), section 162(q) provides:

    • No deduction shall be allowed … for (1) any settlement or payment related to sexual harassment or ...
    California Legislature Increases Benefits for Employees on Family Leave and State Disability

    For periods of disability commencing on or after January 1, 2018, Assembly Bill 908 will increase the benefits provided to individuals in the Paid Family Leave and State Disability Insurance programs.  AB 908 raises the level of benefits from the previous level of 55 percent of an applicant’s wages to 60 or 70 percent of the applicant’s wages depending on the applicant’s income.  Low income employees are eligible for the maximum benefit level of 70 percent.  AB 908 also removes the prior seven-day period that employees had to wait in order to gain eligibility for family temporary ...

    Assembly Bill 2886 Extends SDI Appeal Deadlines

    Beginning March 1, 2018, Assembly Bill 2886 amends the Unemployment Insurance Code to extend the period that an individual may appeal a determination regarding eligibility to receive State Disability Insurance (SDI) benefits, a computation made regarding benefits, or a notice of overpayment of benefits,  from within 20 days from mailing or personal service of the determination to within 30 days of such date.  The 30-day period may be extended for good cause, which is defined to include mistake, inadvertence, surprise or excusable neglect.

    Further, prior to March 1, 2018, AB 2886 ...

    California Extends Family Leave Requirements to Smaller Employers

    Effective as of January 1, 2018, Senate Bill 63 provides that employers with 20 or more employees within a 75-mile radius must grant an employee’s request to take up to 12 weeks of unpaid parental leave to bond with a new child within one year of the child’s birth, adoption or foster care placement.  In addition, employers must provide continuance of group health coverage during the leave period on the same basis as would have been provided had the employee continued to work.  These coverage costs can be recovered if the employee fails to return from the leave and the failure is for a reason ...

    New Law Increases Cal/OSHA Penalties and Changes Division of Labor Standards Enforcement Rules

    Senate Bill 96, the California state budget bill, includes some employment-related “trailer bills” that accompany the main budget bill, including the following:

    Cal/OSHA Penalty Increases:

    SB 96 increases penalties for repeated Cal/OSHA violations from $70,000 to $124,709.  In addition, the civil penalty maximum is increased from $7,000 to $12,471 for each non-serious violation and each violation of posting, recordkeeping or notice requirements.

    The bill also permits those maximum penalty amounts to be increased on January 1, 2018, and each January 1st thereafter based ...

    New Law Phases In Overtime Increases for Agricultural Workers

    Beginning on January 1, 2019,  Assembly Bill 1066 phases in overtime for agricultural workers over a four year period, ultimately making these workers eligible for overtime pay at one and one-half (1-½) times their regular rate after eight hours per day, rather than the current ten hours. Employers who employ 25 or fewer employees will have an additional three years to comply with the phasing-in of these overtime requirements and will be required to meet the same phased in standards mentioned below commencing on January 1, 2022.

    More specifically, in 2019, employers with more than 25 ...

    Senate Bill 621 Gives Part-Time Educators Their Proportional Share

    Senate Bill 621 will become effective on January 1, 2018.  The bill amends Labor Code section 515.8 and is intended to address the ambiguities in Assembly Bill 2230 which was enacted last year.  AB 2230 had set a new earnings standards for designating private school teachers as exempt from overtime which were based on the employee earning a monthly salary equivalent to the greater of no less than the lowest salary offered by any school district or the equivalent of no less than 70% of the lowest schedule salary offered by the school district or county office of education in which the private ...

    New Law Holds Contractors Liable for Subcontractors’ Non-Payment of Wages

    Assembly Bill 1701 (AB 1701) provides a “direct contractor” is liable for the wages, benefits and contributions (plus interest) owed by its subcontractor(s), even if the subcontractor has been paid for the work.  A “direct contractor” is defined to mean a contractor that has a direct contractual relationship with an owner; a “subcontractor” is defined as a contractor without a direct contractual relationship with an owner.  The law applies to all private construction contracts entered into on or after January 1, 2018.  

    AB 1701 does not, however, provide wage claimants ...

    New Law Prohibits Prior Salary Inquiries and Requires Pay Scale Disclosure on Request

    Effective January 1, 2018, California Assembly Bill 168 (AB 168) prohibits asking job applicants about their salary history (including other forms of compensation and benefits), or otherwise seeking this information.  Further, employers may not rely on salary history as a factor in determining whether to offer employment to an applicant, or the salary the employer will offer an applicant.  Although the law permits employers to consider salary history if an applicant voluntarily and without prompting discloses this information, employers should proceed cautiously based on a ...

    Repealing DACA Comes at a High Price to Employers

    The Trump Administration’s termination of the Deferred Action for Childhood Arrivals (DACA) program could have a negative, costly impact on employers.  The DACA program protects nearly 800,000 undocumented immigrants who arrived as children from deportation and gives them legal status to work in the U.S.  Unless the employee can show some other valid form of employment eligibility, employers will need to terminate DACA recipients once their currently valid employment authorization document, Form I-766, expires.  Some estimates show that the end of DACA will cost employers ...

    Alert: Employers Should Distribute Updated Sexual Harassment Brochure or Poster

    The California Department of Fair Employment and Housing (DFEH) recently issued an updated sexual harassment brochure (DFEH-185), which replaces the prior version. The DFEH also provided this information in an easy-to-print poster form (DFEH-185P).

    Either the new poster or updated brochure will fulfill the employer’s obligation to provide employees with an information sheet regarding sexual harassment under state law.  Employers should provide all new employees with the updated brochure or new poster upon hire, and current employees should also be provided the newly ...

    Employer Alert: Reporting Requirements for All New or Rehired California Employees

    All California employers must report their newly hired or rehired employees who work in California to the California Employment Development Department (EDD).  Reporting is done using the EDD’s Report of New Employees form, which was recently updated and can be found HERE (along with instructions for completion).

    Reporting is aimed at locating parents not providing child financial support as obligated.  For general information regarding reporting requirements, including how to report, multi-state employers, etc., check the EDD’s New Employment Registry site found HERE.

    White House Suspends EEO-1 Pay Data Reporting

    Last week the White House Office of Management and Budget (OMB) announced the suspension and review of the new EEO-1 pay data reporting requirement for EEO-1 reports due on March 31, 2018.

    For years, employers with at least 100 employees have been required to complete and submit EEO-1 reports of their employees by race, ethnicity and gender.  Last year the EEO-1 report was expanded to include employee hours and pay data.  The intent of the pay data reporting requirement was to disclose pay gaps so that possible pay discrimination practices could be investigated.

    While the pay data ...

    Employer Alert: Department of Labor Withdraws Guidance on Independent Contractors and Joint Employment

    The U.S. Department of Labor (DOL) recently announced that the Obama-era administrative interpretations regarding joint employment and the classification of a worker as an independent contractor or employee has been withdrawn.

    The guidance regarding the independent contractor classification had indicated that most workers were employees, and not independent contractors.  As for the interpretation of joint employment, which can arise when people work for 2 or more entities which share control over the individuals’ work, the withdrawn guidance had reflected that the ...

    Reminder: Employers Must Provide Notice of Victim Rights to Employees

    As a reminder, all California employers must provide the newly issued Rights of Victims of Domestic Violence, Sexual Assault and Stalking notice to new employees upon hire and to current employees on request.

    You can find the new notice HERE in English, and HERE in Spanish.

    The notice informs employees who are victims of domestic violence, sexual assault, or stalking of various rights and protections, including the right to: unpaid time off to obtain legal relief (e.g., a restraining order); freedom from employer retaliation or discrimination due to their victim status; and ...

    Employer Alert: Must Use Newly Issued I-9 by September 18th

    On July 17, 2017, the U.S. Department of Homeland Security issued a revised version of Form I-9, Employment Eligibility Verification.  

    By September 18, 2017, employers must begin using this revised Form I-9 for all new hires, reverifications and rehires.  It is not necessary to redo previously completed I-9’s, unless an employee’s employment authorization or documentation of employment has expired.

    Until September 18, 2017, employers have a choice:  they may continue to use the I-9 form with a revision date of “11/14/16N”, or begin using the new, revised form.

    The new ...

    California Places New Limits on Employer Use of Criminal History

    New regulations issued by the California Fair Employment and Housing Council (FEHC) impose additional limitations on an employer’s use of criminal history information, and expand the types of criminal history that employers are prohibited from considering.  Effective July 1, 2017, these regulations prohibit an employer from considering criminal history in employment decisions if doing so would result in an adverse impact on individuals within a protected class, such as race, sex, or national origin.  An applicant or employee has the burden of proving adverse impact, but if ...

    Reminder: Los Angeles and Santa Monica Minimum Wage Increases on July 1st

    As a reminder, the minimum wage in the City of Los Angeles and in the City of Santa Monica will increase to $12.00 an hour on July 1, 2017, for employers with 26 or more employees.  The minimum wage for employers in these cities with fewer than 26 employees will increase to $10.50 an hour on July 1, 2017.

    There is another increase set for July 1, 2018, in the City of Los Angeles and Santa Monica that will raise the minimum wage to $13.25 an hour for employers with 26 or more employees. For smaller employers in these cities, the increase on July 1, 2018, will be to $12.00 an hour.

    Employers in the City of ...