Seyfarth Synopsis: The California Legislature has passed a series of bills for Governor Newsom to consider. He now has until October 13 to approve or veto bills such as a Dynamex codification bill and a San Francisco-inspired lactation accommodation bill.

Friday, September 13th marked the Legislature’s last day to pass bills to Governor Newsom’s desk for approval in the first year of the 2019-2020 Legislative Session. The most notorious employment bill has been AB 5, the Dynamex codification (and exceptions) bill. A more stringent lactation accommodation bill has also made its way to the Governor’s desk, as have leave of absence, anti-arbitration, and various industry-specific bills. Bills that did not make the cut may resurface in January in the second part of the two-year session. Below are the most significant employment-related bills of 2019 that the Governor has already approved or that await his action by the October 13th deadline. All approved bills will be effective January 1, 2020, unless otherwise noted.

APPROVED

Independent Contractors Worker Status. The bill creating the greatest buzz has been AB 5, which would codify the California Supreme Court’s 2018 decision in Dynamex Operations West, Inc. v. Superior Court, while also specifying some heavily-lobbied-for exemptions. See our in-depth analysis of it here and here. Governor Newsom signed the bill into law on Wednesday, September 18, 2019.

Sexual Harassment Training. As we reported, SB 778 will extend the deadline for non-supervisory employee training from January 1, 2020 until January 1, 2021 and confirms—in a much needed clarification—that those supervisors who received 2018 training need not be trained again until 2020.

Hairstyle Discrimination. SB 188, the Crown Act, will expand the FEHA’s definition of race to include traits historically associated with race, such as hair texture and “protective hairstyle” (e.g., braids, locks, and twists). The bill aims to chip away at “Eurocentric” professional norms by addressing “workplace dress code and grooming policies that prohibit natural hair, including afros, braids, twists, and locks.” The Legislature has concluded that these policies “have a disparate impact on Black individuals as these policies are more likely to deter Black applicants and burden or punish Black employees than any other group.”

Collegiate Athlete Compensation. AB 1518 will allow student athletes to contract with agents without losing their student athlete status—provided the contract complies with the student’s educational institution’s requirements and the bylaws of the NCAA—and to receive compensation. The Fair Pay to Play Act, SB 206, which passed both houses unanimously and next awaits the Governor’s approval or veto, would, among other things, beginning January 1, 2023, allow student athletes to more easily earn compensation from endorsements. While LeBron James and Draymond Green have praised the bill, the NCAA has strongly opposed it, stating in a letter to the Governor that it has the potential to kill amateur athletics and “erase the critical distinction between college and professional athletics.”

Reporting Occupational Injuries and Illnesses. AB 1804 will require employers to report serious workplace injuries, illnesses, or death immediately by telephone or through an online platform to be developed by the Division of Occupational Safety and Health. Until the online platform is available, employers are permitted to make these reports by telephone or email. Noncompliance carriers a $5,000 civil penalty.

Employment of Infants in the Entertainment Industry. AB 267 will expand the definition of “entertainment industry” beyond a movie set or location to include motion pictures, theater, television, photography, recording, modeling, rodeos, circuses, advertising, and any other performance to the public. The bill will require that all qualifying entities receive—as a prerequisite to employment of an infant under one month of age—a licensed, board-certified pediatrician’s certification that the infant is at least 15 days old, was carried to full term, was of normal birth weight, is physically capable of handling the stress of working in the entertainment industry, and has sufficiently developed lungs, eyes, heart, and immune system to withstand the potential risks.

Employment of Motion Picture Production Workers. SB 271 will allow temporary or transitory employment performed outside of California to count towards unemployment benefits as long as the individual is a California resident, is hired and dispatched from the state, and intends to return to the state to seek reemployment following the outside-California work.

Payment of Wages for Print Shoot Employees. SB 671, the “Photoshoot Pay Easement Act,” authorizes payment of wages to “print shoot employees”—defined as individuals hired for a limited duration to render services relating to or supporting a still-image shoot for use in print, digital, or internet media—on the next regular payday after the employment ends, rather than subjecting the employer to liability for failure to pay final wages on the last day of employment. In another break for employers, the final wages can be mailed to the employee or made available to the employee at a location specified by the employer in the county where the employee was hired or performed labor and the payment is deemed to have been made on the date of mailing or being made available to the employee at the specified location. The bill thus creates an exception mirroring the one existing for motion picture employees. The bill’s urgency clause—making it effective immediately upon its September 5, 2019 signing—highlights what a relief its passage will be to businesses that use short-term models and that have faced legal actions threatening sometimes huge potential liability under the prior law.

Civil Action Damages: Gender, Race Ethnicity. SB 41 aims to narrow the consequences of observed differences in the pay of groups defined by gender or ethnicity. This bill, applying in personal injury and wrongful death cases, will forbid any reduction in damages resulting from an estimation, measure, or calculation or past, present, or future damages for lost or impaired earning capacity that is based on a person’s race, ethnicity, or gender.

Paid Family Leave Expansion & Task Force. Under SB 83, beginning July 1, 2020, the California Paid Family Leave benefit will be eight weeks instead of six weeks, paralleling an increase in San Francisco’s Paid Parental Leave benefit. The bill requires the Governor’s Office to convene a task force to develop a proposal by November 2019 to extend the duration of paid family leave benefits to six months by 2021-22 for parents to care for, and bond with, their newborn or newly adopted child. The November 2019 proposal will also address job protections for workers and the goal of providing a 90 percent wage replacement rate for low-wage workers utilizing the Paid Family Leave program to bond with a child. Approved by Governor Newsom on June 27, 2019, the bill became effective immediately.

AWAITING THE GOVERNOR’S APPROVAL

Independent Contractors Worker Status. AB 170 attempts to slide another exemption into AB 5, via a separate bill, for a newspaper distributor working under contract with a newspaper publisher and a newspaper carrier working under contract with either a newspaper publisher or distributor, until January 1, 2021.

Lactation Accommodation. Based upon the very similar San Francisco lactation ordinance, SB 142 would require employers to provide a lactation room for employees that meets the following requirements: not a bathroom; in close proximity to the employee’s work area; shielded from view; free from intrusion while the employee is lactating; safe, clean, and free of hazardous materials; containing a surface to place a breast pump and personal items; containing a place to sit; with access to electricity or alternative devices (e.g., extension cords, charging stations) that may be needed to operate an electric or battery-powered breast pump; and with access to a sink with running water and a refrigerator suitable for storing milk. If a multipurpose room is used for lactation and other uses, lactation must take precedence over the other uses.

The bill would make a denial of lactation break time or space a violation under rest period laws, and subject the employer to a $100 penalty per violation. The bill contains an anti-retaliation provision and an undue hardship exemption for employers with fewer than 50 employees. The bill would also require an employer to develop and implement a policy regarding any lactation accommodations, and make it readily available to employees. This inordinately comprehensive bill is a repeat of SB 937 (2018), which Governor Brown vetoed given his approval of a less onerous lactation accommodation law, AB 1976.

Sexual Harassment Retaliation Protection. Very similar to AB 3081 (2018), AB 171 would amend the Labor Code to add sexual harassment to the prohibitions on an employer from discriminating or retaliating against an employee because of the employee’s status as a victim of domestic violence, sexual assault, or stalking. The bill would also create a rebuttable presumption of retaliation if the employer takes an adverse action against the employee within 90 days of notice of the employee’s status as a victim. If signed, the bill would become effective January 1, 2020, and these provisions would become operative July 1, 2020.

Sexual Harassment Training: Construction and Temporary Employees. SB 530 would extend the date by when seasonal, temporary, or other employees that are hired to work for less than six months must begin receiving mandatory sexual harassment training to January 1, 2021, and incorporate special training provisions for construction industry employers that employ workers pursuant to a multiemployer collective bargaining agreement.

Leave Rights: Private Cause of Action. AB 1478 would amend Labor Code section 230 to authorize a private right of action (as an alternative to the existing remedy of filing a complaint with the Labor Commissioner) by an employee who takes time off for jury duty, for legal proceedings relating to being a victim of a crime, and for retaliation for being a victim of domestic violence, sexual assault, or stalking. The bill would also make the same changes to Section 230 as AB 171 (discussed above) if AB 171 is approved and AB 1478 is approved after AB 171 (to ensure that AB 171’s provisions also become law).

Organ Donation Leave of Absence. AB 1223 would require employers to grant an employee an unpaid leave of absence—in addition to the existing 30 days in a one-year period paid leave—for the purpose of organ donation. The bill would require a public (not private) employee to first exhaust all available sick leave before taking the unpaid leave.

Local Government Enforcement of FEHA. SB 218 would allow local governments within the County of Los Angeles to enforce, administer, and establish penalties for claims arising under local antidiscrimination laws that also fall under the FEHA, removing these claims from the sole jurisdiction of the DFEH. As if dealing with the downtown L.A. traffic maze weren’t enough, this bill would force employers who do business within Los Angeles to navigate a new network of municipal laws.

FEHA Administrative Exhaustion Extension. A repeat of 2018’s AB 1870, vetoed by Governor Brown, AB 9 seeks to extend the period within which an aggrieved person may file a complaint with the DFEH from one year to three years.

Division of Labor Standards Enforcement for Complaints. AB 403 would extend the statute of limitations for complaints alleging workplace retaliation from six months to two years, and would authorize attorney fees to any employee who successfully sues for retaliation based on whistleblowing.

Labor Commissioner Citations. SB 229 would expand the appeal and enforcement mechanisms available when the Labor Commissioner (“LC”) cites an employer for violating the Labor Code’s anti-retaliation provisions. The bill would establish procedures and deadlines the LC, court, and employers must follow when adjudicating or contesting a citation. SB 688 would expand the LC’s citation authority to include citations for failures to pay contract wages when the LC determines an employer had paid an employee below minimum wage.

Penalties for Failure to Pay Wages. AB 673 would authorize an employee to pursue a private right of action to recover penalties for the late payment of wages through the Private Attorneys General Act, and would remove the authority for the Labor Commissioner to recover civil penalties in an independent civil action. The bill would prohibit the employee from also recovering statutory penalties for the same violation.

Arbitration Prohibition. For agreements entered into, modified, or extended on or after January 1, 2020, AB 51 would prohibit any business from requiring that a job applicant or employee waive any right, forum, or procedure for a violation of the FEHA or Labor Code, including any requirement that an individual “opt out” or take affirmative action to preserve such rights. This bill seems to be another unconstitutional attempt by the California Legislature to forbid arbitration agreements.

AB 51 would make actionable any threatened or actual retaliation against an individual who refuses to consent to the forbidden requirements. AB 51 would authorize injunctive relief and attorney’s fees to any plaintiff who proves a violation. Possibly because much of AB 51 could be held preempted by the Federal Arbitration Act, AB 51 contains a severability clause by which the rest of the law will remain in effect if a court finds certain sections invalid. These provisions of AB 51 are very similar to part of last year’s vetoed AB 3080.

Arbitration Agreement Fees/Costs. SB 707 would require an employer or drafter of an arbitration agreement to pay costs and fees associated with the arbitration. Failure to pay the fees could constitute material breach of the arbitration agreement, or the employee could withdraw the claim from arbitration, or be entitled to attorney’s fees and costs. The bill would also require a private arbitration company to collect and report aggregate demographic data regarding the ethnicity, race, disability, veteran status, gender, gender identity, and sexual orientation of all arbitrators.

Settlement Agreements Future Employment Restraints. AB 749 would prohibit settlement agreements that contain a provision restricting an employee from working for the employer against which the employee filed the claim.

Unfair Immigration-Related Practices. AB 589 would impose penalties on an employer that withholds an employee’s immigration-related documents and would create a Worker’s Bill of Rights concerning the employee’s freedom of movement and the payment of wages.

Workplace and School Gun Violence Restraining Orders. Beginning September 1, 2020, AB 61 would authorize an employer, or a coworker who has had substantial and regular interactions and approval of their employer, to file a petition for an ex parte, one-year, or renewed gun violence restraining order.

Call Center Protections. AB 1677 would require any employer with a call center currently in the state intending to relocate the call center to notify the LC at least 120 days before the relocation or face a civil penalty.

Industry-Specific Bills Awaiting Approval

Continuing Education: Implicit Bias in the Medical Field. AB 241 would require, by January 1, 2022, that continued education for physicians, surgeons, nurses and physician assistants include courses on implicit bias. The bill would require the Board of Registered Nursing and the Physician Assistant Board to adopt regulations requiring implicit bias training by January 1, 2022.

California Family Rights Act: Flight Crews. AB 1748 would amend the California Family Rights Act to conform flight deck and cabin crewmember eligibility requirements with the federal Family and Medical Leave Act, which has special hours of eligibility for airline flight attendants and other cabin crew. Flight attendants are eligible for FMLA if, during the previous 12 months, they have worked at least 504 hours and have been paid at least 60% of the monthly guarantee, which means that they worked 60% of the minimum number of hours which the employer scheduled the employee for any given month.

Sexual Violence and Harassment Prevention Training for Janitorial Workers. AB 547, the Janitor Survivor Empowerment Act, would require the Director of the Department of Industrial Relations to organize a training advisory committee that will generate a list of qualified organizations and trainers that janitorial employers would be required to use to provide biennial, in-person sexual violence and harassment prevention training for janitorial workers. This is in addition to the Property Service Workers Protection Act that kicks in on January 1, 2020, which we previously covered here.

Occupational Safety and Health for Valley Fever. AB 203 would require construction employers operating in counties where Valley Fever—a microscopic fungus which lives in the top few inches of the soil in many parts of California—is “highly endemic,” to provide effective training on the disease to employees annually and before an employee is anticipated to cause substantial dust disturbance.

Workplace Solutions

These bills are affecting businesses across the spectrum, and Seyfarth is following their passage (and potential passage) closely. We will continue to keep you informed of new developments as they arise, and please do not hesitate to reach out to your favorite Seyfarth counselors to discuss how to approach these new developments for your company.

Edited by Coby Turner

Seyfarth Synopsis: California’s hotly contested and closely followed AB 5 independent contractor bill, which would extend the ABC test beyond Wage Order claims, just passed the California Senate, and now heads back to the State Assembly for reconciliation before going to Governor Newsom’s desk for his expected signature.

Tell Me What You Think About Me: The Destiny of AB 5

The California Senate has just passed a landmark bill, Assembly Bill 5 (“AB 5”), affecting how many businesses will relate with their contractors. Under this bill, workers who have long thought they “depend on no one else” may now be treated as employees. AB 5 now heads back to the State Assembly for reconciliation before it returns to Governor Newsom’s desk for his expected signature.

AB 5 codifies the “ABC” test for employee status adopted by the California Supreme Court’s 2018 decision in Dynamex v. Superior Court. Dynamex, as we previously reported here, which held that a worker hired by a business who then sues the business on claims arising under California’s Wage Orders is the defendant’s employee unless the defendant proves (A) the worker is free from control and direction of the hirer in connection with performing the work, both under contract and in fact, (B) the worker performs work outside the usual course of the hiring entity’s business, and (C) the worker customarily engages in an independently established trade, occupation, or business of the same nature as the work performed for the hirer.

While many businesses and independent contractors thought it was bad enough to “get down with that,” AB 5 would expand Dynamex by applying the “ABC” test to all claims brought under the Labor Code, the Unemployment Insurance Code, and the Wage Orders. So, post-AB 5, the ABC test will apply to a host of additional causes of action, such as claims for failure to reimburse necessary business expenses (under Labor section 2802) or to provide accurate wage statements (under Labor Code section 226), that the ABC test did not apply to previously.

Also, AB 5 would broaden potential business liability by allowing the State Attorney General and certain city attorneys to pursue injunctions against businesses suspected of misclassifying workers.

‘Cause I Depend On Me: Exemptions From the ABC Test

Perhaps not surprisingly, given the intense lobbying efforts by businesses trying to preserve the status of workers traditionally considered independent, AB 5 contains numerous statutory exemptions from the ABC test, including:

  • A “business-to-business” exemption that applies to “business service providers” that contract to provide services to another business (provided that certain criteria are met).
  • A “service providers” exemption in certain fields, including graphic design, photography, tutoring, event planning, moving, home cleaning, pool and yard cleanup, animal services, web design, and dog grooming and walking.
  • An exemption for certain “professional services” such as jobs in marketing, human resources administration, travel agents, graphic designers, grant writers, fine artists, agents licensed to practice before the IRS, payment processing agents, photographers and photojournalists, freelance writers, editors or cartoonists, and professionals providing cosmetic services (e.g., licensed barbers and manicurists).
  • Certain other occupational exemptions, including (but not limited to) certain medical professionals, attorneys, architects, engineers, private investigators, registered securities brokers and dealers, commercial fishermen, real estate agents, construction subcontractors, and individuals providing roadside services pursuant to a contract between a motor club and a third party business.
  • And, assuming a pending companion bill to AB 5 is also passed into law, newspaper carriers will be exempted from the ABC test until 2021.

What’s Next?

AB 5, if signed into law, would become effective January 1, 2020, and surely would prompt a spike in litigation challenging independent contractor classifications. It is anticipated that the law will be subject to numerous legal challenges.

Workplace Solutions

The status of AB 5, its many legal challenges, and its impact on businesses and workers is evolving by the minute. So if you “truly feel” us, and want to know the latest on some of the most pressing wage and hour issues arising in the marketplace space, Seyfarth will be covering the topic in various ways for employers around the country. Choose the one that’s right for you! Or join our webinar, specifically developed to cover AB 5, which will take place soon. To get on the list for these upcoming events, click here.

We are also covering the topic as a part of a broader roundtable discussion on wage and hour issues. These roundtables are designed for in-house counsel and are taking place in San Francisco (10/23) and Boston (11/5). If you are in the Houston area, you can also find us chatting about AB 5 (10/10). For more information on these regional programs, click here.

Edited by Coby Turner

Seyfarth Synopsis: California employers racing to ensure all their employees receive mandatory harassment training by the end of the year can now take their foot off the gas. In response to an outcry from employer groups regarding the challenge of compliance at breakneck speed, the Legislature and Governor Newsom have extended the new training deadline for a year.

Faithful readers of this blog will recall that the 2018 legislation bringing us many other harassment-related provisions (SB 1343) greatly expanded sexual harassment training requirements (described here). Starting in 2019, under SB 1343, employers of as few as five people (down from fifty employees under the prior law) must provide two hours of interactive training to their supervisors. In addition, all such employers must now provide one hour of interactive training to all non-supervisory employees. SB 1343 served to greatly increase the number of employers covered and the volume of trainings required, and it set deadlines for the training. Employers around the state had geared up, started their engines, and raced to meet this aggressive deadline.

Then Governor Newsom waved a yellow flag. In his first lap around the bill-signing track, he tapped the brakes right before Labor Day by signing Senate Bill 778, no doubt to cheers and popped bottles of milk from employers across the state. SB 778—effective immediately upon the Governor’s August 30, 2019 signature—extends the deadline for non-supervisory employee training from January 1, 2020 until January 1, 2021. SB 778 also clears up confusion regarding the deadline to train supervisors trained under prior legal training requirements, since one interpretation of SB 1343 would have required supervisors trained in 2018 to be re-trained prior to the end of 2019. SB 778 now confirms that those supervisors who received 2018 training need not be trained again until 2020, so employers can go back to following their normal pace cars on existing supervisor training.

The training requirements for newly hired supervisory employees have not been changed in SB 778, and employers still must train new hires within six months of starting a supervisory position.

Workplace Solutions:

This welcome delay in the training deadline is no excuse to fall asleep at the wheel. Make a pit stop with your favorite Seyfarth advisor to determine the best way to ensure compliance before the new deadline catches you from behind.

Edited by Coby Turner

Seyfarth Synopsis: The hotly contested AB 5 was put on hold, but is widely expected to be revived before the end of the legislative session.

On August 13, 2019, the California Senate Appropriations Committee held a short hearing on Assembly Bill 5. AB 5, if enacted into law, would codify the “ABC Test” for employee status adopted in the California Supreme Court’s 2018 Dynamex v. Superior Court decision, and would thus further hinder the efforts of businesses to use independent contractors. While there was little substantive discussion of the bill, the hearing culminated in a potentially significant result.

The Senate Appropriations Committee referred AB 5 to the “suspense file,” because of if its significant fiscal impact. This action places a hold on the bill unless the Chair of the Appropriations Committee decides to return the bill to the Committee. Referral to the suspense file, in effect, functions as a veto if a bill is not returned to the Committee.

While this kind of action is often the death knell for many bills, the significant support for this bill from many legislators, including its influential author, Lorena Gonzalez Fletcher (D-San Diego), Chair of the Assembly Appropriations Committee, enhances the bill’s chances of being returned from suspense and continuing through the legislative process.

In fact, the Senate President pro tem, Toni Atkins (D-San Diego) fully expects AB 5 to move forward. And Atkins, much to the chagrin of gig economy companies, expressed skepticism that the bill eventually signed into law would contain a provision specifically addressing the status of gig workers, as negotiations between business and labor interests appear primed to continue into the next legislative session, stating in an interview with CapRadio’s Ben Adler “I have no doubt that we will discuss this into the next year.”

With that said, AB 5 will need to make it through the legislative process by the September 13th close of the legislative session, and must then be submitted to the Governor for his approval or veto by October 13th, lest it remain in suspense-file purgatory.

Workplace Solutions

Companies utilizing contractors should continue to keep a close eye on this legislation and how it may affect their current operations, as it has gone through a number of changes from its initial proposed form. Seyfarth will keep you apprised as the legislative session continues—stay tuned!

Edited by Coby Turner

Seyfarth Synopsis: A new set of proposed regulations requires all janitorial employees and their supervisors to receive two hours of in-person, interactive sexual harassment training every two years.

The Property Service Workers Protection Act of 2016 requires employers with at least one janitorial worker (including front line cleaners) to provide biennial sexual violence and harassment prevention training to janitorial employees and their supervisors. The law states that as of January 1, 2020, this training must be completed in order for these employers to register or renew their business with the Division of Labor Standards Enforcement (DLSE). But there’s a catch: janitorial employers have been left in the dark as to exactly what these training regulations will entail while the DLSE irons out the details.

The DLSE’s proposed regulations require:

  • In-person, interactive training. The regulations expressly forbid webinars, e-learning training, and the like as the sole method for providing this training. The training must be designed to encourage participants to apply the lessons learned regarding sexual violence and harassment to their particular work environment. For new employees, this in-person training must occur within the first six months of employment.
  • Two hour duration. Even janitorial employees with no supervisory responsibilities must take two hours of training, a departure from the one-hour requirement for nonsupervisory employees set forth in Government Code section 12950.1. Nevertheless, the training can be broken up into hourly increments.
  • Resources for sexual violence and harassment victims. In addition to the harassment training content required under Government Code section 12950.1 and related regulations, the training must identify local, state, and national resources for victims of unlawful sexual violence and harassment. In particular, community-based resources, such as rape crisis centers, should be identified.
  • Training to be provided in attendee’s language. The in-person training must be provided in a language understood by the attending janitorial employees and their supervisors. All written materials must be at their literacy level as well.
  • Written record of completed training. Employers must keep training records for three years. Employers must retain—and give the DLSE upon request—the names of the attendees and the trainer, a copy of all written materials, sign in sheets, and certificates of attendance.

Although the DLSE’s official training protocols were to be finalized no later than January 1, 2019, the comment period was extended. To date, the DLSE has not issued final regulations.

Meanwhile, pending legislation (AB 547) has passed the Assembly and is currently before the Senate. If passed, this bill could make the training requirements even more onerous. AB 547 would require employers to use qualified organizations to provide the mandated training, and would require lodging a report with the DLSE within 48 hours of the training. If this bill becomes law, the DLSE would have to develop and maintain a list of these qualified organizations (as well as peer trainers within these organizations).

Workplace Solutions

What should employers with one or more janitorial employees do until the DLSE straightens out the training requirements? For now, the Department of Industrial Relations advises that employers can meet their current obligations by giving their janitorial employees and their supervisors copies of the Department of Fair Employment and Housing (DFEH) pamphlet DFEH-185, “Sexual Harassment.” But employers will need to be prepared to implement the new regulations once they are finalized.

If you have questions about how to clean up your current training regimen, Seyfarth’s Workplace Solutions Group can help.

Edited by Elizabeth Levy

Seyfarth Synopsis: Cal/OSHA’s new emergency regulation for workers exposed to wildfire smoke creates new obligations for many employers.

An emergency regulation on Protection from Wildfire Smoke applies to outdoor workers and to workers in semi-indoor places. Examples include day laborers, agricultural workers, landscapers, construction workers, and sanitation workers. Requirements (described below) kick in when the current Air Quality Index (AQI) for airborne particulate matter (PM 2.5) is 151 or greater, and where employers should reasonably anticipate that employees could be exposed to wildfire smoke.

Employers covered by the emergency regulation must take the following steps to protect workers who may be exposed to wildfire smoke:

  • Identify harmful exposure to airborne particulate matter from wildfire smoke at the start of each shift and periodically thereafter by checking the AQI for PM 2.5 in regions where workers are located.
  • Reduce harmful exposure to wildfire smoke if feasible by, for example, relocating work to an enclosed building with filtered air, or to an outdoor location where the AQI for PM 2.5 is 150 or lower.
  • If employers cannot reduce workers’ harmful exposure to wildfire smoke so that the AQI for PM 2.5 is 150 or lower, they must provide:
  1. Respirators such as N95 masks to all employees for voluntary use, and
  2. Training on the new regulation, the health effects of wildfire smoke, and the safe use and maintenance of respirators.

The regulation will be effective through January 28, 2020, with two possible 90-day extensions. Cal/OSHA plans to convene an advisory committee in Oakland on August 27 to establish a permanent regulation using the regular rulemaking process. Meeting details and documents are posted on Cal/OSHA’s website.

For more information on this or any related topic, please contact the authors, your favorite Seyfarth attorney, or any member of the Seyfarth Workplace Safety and Health (OSHA/MSHA) Team.

Seyfarth Synopsis: The great California patchwork of minimum wage ordinances might have employers feeling full of matatas, but no worries! Seyfarth is here to explain the circle of life of these laws so that even the slowest hyena could follow.

More Food For The Whole Flock

As of July 1, 2019, many California counties and municipalities have upped the ante with ordinances that increase local minimum wage rates. Some municipalities prescribe different rate increases depending on the number of employees in the herd, while others specify that hotel and government assisted workers receive special treatment. Even the most studious of lions may have trouble mastering the different local herds’ pay, but the chart below is a handy cheat sheet to help guide the way.

Jurisdiction

Pre-July 1, 2019 Minimum Wage

Post-July 1, 2019 Minimum Wage Hike

Alameda $11 for small employers and $12 for large employers $13.50 for all employers
Berkeley $15 $15.59
City of Los Angeles – for fewer than 26 employees $12 $13.25
City of Los Angeles – for more than 25 employees $13.25 $14.25
City of Los Angeles – hotel workers exclusively $16.10 $16.63
County of Los Angeles Unincorporated – fewer than 26 employees $12 $13.25
County of Los Angeles Unincorporated – for more than 25 employees $13.25 $14.25
Emeryville – fewer than 56 employees $15 $16.30
Emeryville – more than 55 employees $15.69 $16.30
Fremont $12 $13.50
Long Beach $14.64 $14.97
Malibu – fewer than 26 employees $12 $13.25
Malibu – more than 25 employees $13.25 $14.25
Milpitas $13.50 $15
Oakland – hotel workers without benefits exclusively $13.80 $20
Oakland – hotel workers with benefits $13.80 $15
Pasadena – fewer than 26 employees $12 $13.25
Pasadena – more than 25 employees $13.25 $14.25
San Diego* $12 $12 (no change)
San Francisco $15 $15.59
San Francisco – government supported employees exclusively $13.27 $13.79
San Francisco – non-Profit Employers** $15 16.50
San Francisco – for-Profit Employers** $15 $17.66
San Francisco – Public Entities** (If the city appropriates funds for the increase in the budget) $16 $16.50
San Leandro $13 $14
Santa Monica – fewer than 26 employees $12 $13.25
Santa Monica – more than 25 employees $13 $14.25
Santa Monica – hotel workers exclusively $16.10 $16.63

*San Diego did not have a minimum wage increase scheduled for July 1, 2019

**SFO airport tenants, subtenants and their subcontractors, contractors and subcontractors providing services to city and county of San Francisco, and public entities within the city and county who have city contracts must follow San Francisco’s Minimum Compensation Ordinance. The MCO includes 12 paid days off per year (or cash equivalent) and 10 days off per year without pay.

What’s more, as of July 18, 2019, the U.S. House passed a $15 per hour minimum wage, which would raise the federal hourly rate from the current $7.25. However, the bill is unlikely to pass in the current Senate. Either way, keep your ears perked for future news on this development, since it’s important to always look where you’re headed rather than where you were!

Workplace Solutions: For help troubleshooting specific ordinance questions (including navigating the various posting and notification requirements of the specific local ordinances) or help reaching Hakuna Matata, contact your favorite Seyfarth attorney. Or Timon and Pumbaa. Until then, Long Live the King!

Edited by Coby Turner and Elizabeth Levy

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Seyfarth Synopsis: As the mercury rises, California employers must comply with regulatory requirements to keep their employees cool.  Employers should be aware of Cal/OSHA’s existing requirements for outdoor workplaces and proposed rules which could turn up the heat on indoor employers.

California Keeps It Cool

For many years, Cal/OSHA has distinguished itself from Federal OSHA by, among other things, requiring all California employers with outdoor work areas to take steps to prevent heat illness.  For example, employers with outdoor work areas must train all employees about heat illness protection and keep their employees well hydrated.  Employers must also provide shady areas for five minute cool-down breaks when employees feel the heat.  (These breaks are on the clock and separate from rest breaks employers need to provide under the Labor Code).  Finally, employers must develop and implement written procedures for complying with the heat illness regulatory requirements. The regulation is contained in 8 CCR 3395.

Proposed Rules May Put Indoor Employers in the Hot Seat

Now, Cal/OSHA has a proposed an indoor heat illness standard that’s making its way through the rule-making process. The final draft of these proposed rules would impose a number of requirements when it’s a good day to head to the beach—and indoor temperatures equal or exceed 82 degrees Fahrenheit.

For indoor work areas that can’t beat the heat, employers would need to provide:

  • Cool-down areas that are blocked from direct sunlight and radiant heat sources (e.g. the sun, a fire pit, or an overzealous espresso machine) and that are either open-air or ventilated. Employees would need to have access to cool-down areas at all times and employers would be required to encourage employees to take breaks to chill out.
  • Drinking water.
  • Emergency response procedures.
  • Close observation of employees under certain circumstances.
  • Training on heat illness related topics.
  • A written heat illness prevention plan.

Additional requirements would apply to employers that have employees working under hotter conditions, namely: if employees wear clothes that restrict heat removal (like waterproof or biohazard gear), employees work in or near radiant heat, or the thermostat hits 87 degrees.  In these cases, employers would need to:

  • Keep records of temperatures and evaluate environmental risk factors for heat.
  • Use engineering control measures (e.g. air conditioning) to minimize the risk of heat illness. If the temperature cannot be reduced to 87 degrees F (or 82 degrees F in some cases), employers would need to implement administrative controls and provide personal heat protective equipment.

Workplace Solutions: As summer heats up, employers must comply with existing California heat regulations.  Seyfarth’s Workplace Safety and Health Group can help you check the forecast for future regulations.

 

Edited by: Elizabeth Levy

Seyfarth Synopsis: While employees often will toot their own horn, employers sometimes may have concerns about their ability to safely perform their job. If this situation rings a bell, it will be music to your ears to hear that it may be possible to request employees to undergo a medical examination to certify their fitness for duty.

Fitness for duty examinations are permitted under both the federal Americans with Disabilities  Act (ADA) and the California Fair Employment and Housing Act (FEHA). However, because employers are generally prohibited from inquiring about employees’ physical and mental conditions, employers must exercise caution and should not march to the beat of a different drum.

What if I don’t think an employee is ready to return from leave?

Under the Family and Medical Leave Act (FMLA), when an employee’s physician certifies that  the employee can return to work from leave, the employer must return the employee to work. However, if the certification is incomplete or insufficient, the employer can give the employee a written notice stating what additional information is necessary.

Alternatively, as discussed by the California Court of Appeal in White v. County of Los Angeles, once the employee has returned to work from FMLA-protected leave, an employer can request an examination consistent with the ADA.

Under California’s FEHA, an employer may require an employee to undergo a medical examination to certify an employee’s fitness for duty upon the employee’s return from a non-FMLA medical leave of absence if there are reasonable safety concerns regarding the employee’s ability to perform the essential job functions. The examination must be job-related and a business necessity under the specific circumstances.

Can I require a fitness for duty examination when there are safety concerns?

An employer may require an employee to submit to a medical examination and obtain a fitness for duty certification if the employer has a reasonable belief based on objective evidence that the employee’s ability to perform essential job functions will be impaired by a medical condition, or that the employee will pose a direct threat due to a medical condition. If a medical examination and fitness for duty certification is sought under those circumstances, the examination must be job-related and consistent with business necessity.

Employers must have a “genuine reason to doubt” an employee’s ability to perform job-related functions. So, when considering a fitness for duty examination, it is instrumental to have evidence to drum up support for your reason to doubt the employee’s fitness. Excessive absenteeism, difficulty performing essential functions of the job, or poor productivity (particularly where outside of the employee’s usual patterns or character) may all be “cymbal-ic” of an employee being “unfit for duty.” These situations are highly fact specific and employers will have to play it by ear to see if a fitness for duty examination is appropriate in a particular circumstance.

What can a fitness for duty examination tell me?

Under California’s Confidentiality of Medical Information Act (CMIA), unless the employee provides written authorization, an employer can only know whether the employee is able to perform the essential functions of the job. In other words, the employer cannot be told the diagnosis or cause of an employee’s inability to perform—it is simply a pass/fail examination. However, if an employee would be able to perform the essential functions of the job with a reasonable accommodation, the employer is entitled to know the medical restrictions of the employee’s fitness for duty, such as lifting or standing restrictions, or needing an alternative schedule. Of course, if there is any doubt as to the accommodations needed, an employer can request that the employee provide additional clarification.

Workplace Solutions: Fitness for duty examinations are a useful instrument for employers, but be wary of playing solo. Your favorite Seyfarth attorney can chime in to make sure you land on the right note.

Edited by Coby Turner and Elizabeth Levy

Seyfarth Summary: Like the singers in “California Dreamin,” many out-of-state employers—on a winter’s day and otherwise—might dream of operating in California. California is an attractive market for out-of-state companies. But employers who hire employees in California or send employees to work there face a unique set of challenges. Below are some key areas of employment law these companies should consider if they want to be “safe and warm in L.A.”

Background

Access to the California market—the sixth largest economy in the world—is irresistible for many companies. But doing business there entails a unique set of risks. California confronts employers with an often hostile combination of regulatory oversight, complex employment laws (creating draconian penalties for failure to comply), and employee-friendly courts and administrative agencies. Before dipping a toe onto California’s shores, out-of-state businesses should understand whether and when California’s peculiar (and often unique) employment laws apply to their employees.

California judicial decisions have made clear that even employers who are primarily based out-of-state and have only a few employees in California must comply with California employment law. In a 2011 decision, Sullivan v. Oracle, the California Supreme Court held that non-California residents working in California for a California-based employer were subject to California’s daily overtime laws when they worked in California for a whole work day. Oracle left employers up in the air as to whether California law would apply in other contexts, such as when non-California residents work partial days in California and such as when other issues other than overtime pay are involved.

In 2018, the Ninth Circuit requested the California Supreme Court to address some of these outstanding questions in cases against United Airlines and Delta Airlines. The Supreme Court has not yet ruled.

Meanwhile, out-of-state employers are well-served by seeking counsel before hiring employees in California or even sending employees to the Golden State to conduct business on a temporary basis. Some of the California peculiarities facing out-of-state employers are:

  • Minimum Wage—As of January 2019, the minimum wage for larger employers (having more than 26 employees) rose to $12. (And California’s minimum wage for all employers will incrementally increase to $15 an hour over the next few years.) Meanwhile, California has no shortage of progressive jurisdictions (safe and warm LA among them) that have their own special minimum-wage laws.
  • Daily Overtime—California non-exempt employees must be paid at one and one-half times the regular rate for all hours worked over eight in a day (and any hours worked on a seventh consecutive workday during a workweek) and must be paid doubletime for all hours worked over twelve in a day (and any hours worked over eight on a seventh consecutive day during a workweek). These rules contrast sharply with federal law, which requires overtime pay only when employees work more than forty hours during a workweek.
  • Itemized Wage Statements—California employers must provide hyper-specific items of information on wage statements. Failure to do so can result in the imposition of hefty penalties. These requirements include, among other things, gross wages earned, total number of hours worked, net wages earned, the period during which the wages were earned, all deductions, and all hourly rates applicable during the pay period.
  • Meal and Rest Periods—Non-exempt employees working in California must be provided certain meal and rest periods (and recovery periods). Moreover, employers must keep accurate records of employee meal periods and pay a penalty when either meal or rest or recovery periods are not provided.
  • Independent Contractors—California is peculiarly if not uniquely hostile to businesses that classify workers as independent contractors instead of employees. Misclassifications can trigger substantial liability for missed meal and rest periods, unpaid overtime and unpaid expenses, and even massive civil penalties, among other consequences.
  • Discrimination and Harassment—California recognizes many “protected characteristics” that do not appear in federal law anti-discrimination laws, characteristics such as sexual orientation and gender identity or expression.
  • Local Ordinances—As noted already (but worth repeating), many California local governments, including the Cities of San Francisco and Los Angeles, boast of their own special laws on subjects such as minimum wage and paid sick leave.

Workplace Solution

While the Oracle case left many unanswered questions, employers are well-served by understanding when they need to apply California law, and how to correctly implement it. Feel free to contact your favorite Seyfarth attorney if you would like to discuss.

 

Edited By: Elizabeth Levy