Seyfarth Synopsis: Wake up San Francisco! Mayor London Breed has approved amendments that will significantly expand the city’s 2014 Family Friendly Workplace Ordinance (“FFWO”). The amendments will go into effect on July 12, 2022.

Everywhere You Look, Everywhere You Turn, There’s Somebody Who Needs . . . Flexible Working Arrangements

Just like our favorite 90s TV dad, Danny Tanner and his comedic cohorts, employees with caregiving responsibilities have been working double duty in their homes and workplaces. Unlike in sitcoms, most employees do not have a full house of help to rely on. Recognizing the real world demands placed on employees over the past several years, San Francisco has passed amendments to its 2014 Family Friendly Workplace Ordinance (“FFWO”), which will go into effect on July 12, 2022.

The 2014 FFWO, discussed here and here, gave covered employees the right to request alternative work arrangements to assist with caregiving responsibilities, but did not entitle employees to a specific response to their requests.

The 2022 amendments may be challenging for employers, as they provide expanded coverage and guarantee flexible or predictable work arrangements for employees with qualifying caregiver responsibilities who provide notice of their preferred arrangement, unless there is undue hardship to the employer.

It’s A Full House Of Covered Employees And Caregiving Activities

Under the original FFWO, employees were protected if they were:

    1. Employed in San Francisco;

(a) By an employer with 20 or more employees regardless of location;

(b) For six months or more;

2. Working at least eight hours per week on a regular basis; and

3. Providing care for:

a. a child/children under the age of 18;

b. a person/persons with a serious health condition in a family relationship with the employee;

c. or a parent (age 65 or older) of the employee.

The amendments expand protections to include employees teleworking into San Francisco from a location outside of the city. “Telework” is broadly defined as an employee’s work for an employer from the employee’s residence or other location that is not the employer’s office or worksite, provided that the employer maintains an office or worksite within the boundaries of the city at which the employee may work, or prior to COVID-19 was permitted to work.

The amended ordinance also includes in the definition of qualifying caregiver responsibilities care of any person age 65 or older with a family relationship to the employee (where the original ordinance was limited to care for a parent).

When The Flexible Working Arrangements Cause Employers Undue Hardship, Have Mercy

Undue hardship is the only grounds for denying a qualifying employee a flexible or predictable working arrangement. The bases for undue hardship are the same as those included in the 2014 FFWO and may include:

  • Cost-Related Hardship: The costs directly caused by flexible or predictable working arrangements, including cost of productivity loss, retraining or hiring employees, or transferring employees from one facility to another.
  • Client/Customer Impact: Detrimental effect on ability to meet customer or client demands.
  • Coordination Difficulties: Inability to organize work among other employees.
  • Insufficient Work: Insufficiency of work to be performed during the time or at the location the employee proposes to work.

Employers’ New Interactive Process And Notice Obligations

Under the amended ordinance, the employer may choose to meet with the employee regarding a flexible working arrangement within 14 days of receipt of the notice of this need. This is an optional meeting.

Whether or not the employer opts to conduct a meeting, the employer must respond in writing within 21 days of receipt of the employee’s notice, either confirming the flexible working arrangement or denying the employee’s request and initiating an interactive process to determine an alternate, mutually agreeable arrangement.

A notice initiating the interactive process must include the following:

  • The basis for the denial (how the flexible work arrangement created an undue hardship);
  • The right to request reconsideration of the denial;
  • The right to file a complaint with the San Francisco Office Of Labor Standards Enforcement (OLSE); and
  • A copy of the Flexible Work Ordinance Notice

If the interactive process is unsuccessful and employer denies or revokes a flexible or predictable working arrangement, the employer must provide written notice of this decision. The amendments are silent as to any required content of this notice, and we expect the forthcoming FAQs will provide clarification.

If an employee requests reconsideration of the denial within 30 days of the written notice, the employer must meet with the employee within 21 days of the reconsideration request, and inform the employee of the employer’s final decision within 14 days of that meeting. This notice of final decision must be in writing and, if a denial, must explain the employer’s basis for undue hardship and inform the employee of the right to file an OLSE complaint.

You’re In Big Trouble, Mister—Expanded Enforcement Mechanisms For The OLSE

The amendments include several changes to the OLSE’s investigation authority and recourse against an employer who has been found to have violated the amended FFWO.

  • What Can The OLSE Review: Under the original FFWO, the OLSE could only review and issue a finding as to whether the employer had complied with the procedural, posting, and documentation requirements of the ordinance. The amendments broaden the scope of the OLSE’s review to include the validity of an employer’s claimed undue hardship.
  • Elimination Of The OLSE’s 12-Month Warning Period: Under the original FFWO, during the first 12 months of an OLSE investigation, the Agency could issue warnings and notices to employers to correct potential violations. Only after this 12-month window could the OLSE impose an administrative penalty. The amendments eliminate this warning period.
  • Enforcement Parameters: Under the original FFWO, the OLSE could require a violating employer to pay up to $50 to each employee for each day or portion thereof that the violation occurred. Under the amendments, a violating employer is required to pay either the $50/day or portion thereof to each affected employee, or up to the cost of care the employee incurred due to the violation, whichever is greater.
  • Non-Complying Employers: Under the original FFWO, if an employer did not promptly comply with the OLSE’s determination, the Agency could initiate a civil action and order a violating employer to pay the city no more than $50 for each day or portion thereof in which a violation occurred, and for each employee to whom the violation occurred or continued. The amendments add a further means of seeking compliance by allowing the OLSE to recover up to the City’s costs for its investigation and remedy of the violation if greater than the $50/day provision.
  • Enforcement Of The OLSE’s Decision: The amendments further provide that the OLSE may seek to enforce its final administrative decision through a civil lawsuit and, except where prohibited by State or Federal law, may request that city agencies or departments revoke or suspend registration certificates, permits, or licenses held or requested by the employer until the violation is remedied.

I Need To Get That In Writing, Capiche?

The 2014 FFWO and the 2022 amendments both require employees to make requests in writing. Employers may also ask employees for verification to support their requests.

Employers are also (still) required to post the city’s official FFWO notice in a conspicuous place in English, Spanish, Chinese and any other language spoken by at least 5% of the workforce.

Employers must also retain records to demonstrate compliance for three years from the date of a request for a flexible working arrangement.

Cut – It – Out! Some Exemptions and Waivers Remain

Limited exemptions and waivers contained in the original FFWO have not been modified by the amendments. A collective bargaining agreement can still expressly waive any or all of the provisions of the FFWO, and the OLSE may still exempt certain employees working in public safety or public health functions pursuant to an employer’s request.

Workplace Solutions

Employers impacted by the amendments to the FFWO should develop San Francisco-specific flexible working arrangement policies. The authors and your favorite Seyfarth attorneys are always available to help employers navigate the road to compliance.

Edited by Coby Turner

Seyfarth Synopsis: Headlining the employment-related bills that passed the May 27, 2022, House of Origin Deadline is AB 85, which extended COVID-19 Supplemental Paid Sick Leave to September of this year, as well as bills related to accommodations, leaves, retaliation, and workers’ compensation.

On the deadline for bill introduction, back in February, California legislators introduced 611 bills between the two houses, bringing the total number of bills introduced in 2022 to 2,020—1,361 Assembly Bills (“AB”) and 659 Senate Bills (“SB”) 458 of those bills were spot bills, while 181 were intent bills (explanation here). A significant portion of the bills introduced occupy the labor and employment space.

While many measures that would have caused headaches for employers failed to meet the House of Origin deadline, the most concerning provisions remain on a path to Governor Newsom’s desk. Below, we summarize the most significant bills that met the House of Origin deadline and remain in play for California employers.

The bills will now make their way through the committee process in either the Senate or Assembly (depending on which Chamber introduced the measure). Many of these measures will undergo significant amendment, or be completely gutted and amended to look nothing like their genesis. Some will make it through the legislative process, and some will not. Stay tuned for more in-depth analyses of the proposed bills of most interest to employers as the session continues.

COVID-19 Continues to Occupy Legislative Focus

COVID-19 Supplemental Paid Sick Leave (Again): AB 84  

While the California legislature was unable to, or uninterested in, passing a broad vaccination mandate, intense negotiations between the Newsom administration and the business community yielded a whole new tranche of up to 80-hours of mandatory paid sick leave for a variety of COVID-19-related reasons that went into effect on February 19, 2022, and was made retroactive to cover time off taken after January 1, 2022. Despite lobbying efforts by the business community, employers cannot require that this leave be exhausted before using leave available under the Cal/OSHA ETS.

In this iteration of the SPSL, which we blogged about in detail here, there are two buckets of leave available, each up to 40 hours. For the “first bucket,” the qualifying reasons for an employee to be eligible for paid leave are nearly the same as for the 2021 iteration, SB 95, but AB 84 adds leave in order to attend a vaccination appointment for a family member, or to care for a family member experiencing COVID-19 symptoms. Unlike the 2021 COVID-19 SPSL law, AB 84 provides that an employer may limit the total vaccination-related leave to 3 days or 24 hours unless the employee provides verification from a health care provider that they or their family member is continuing to experience symptoms related to a COVID-19 vaccine or booster.

Qualifying reasons for the “second bucket” of up to 40 hours include where the covered employee or a family member tests positive for COVID-19, and employers are allowed to require proof of the positive test. The employer has no obligation to provide the second bucket of leave if the employee does not have proof of the positive test for themselves or their family member.

The rate of pay required for non-exempt employees is the regular rate during the pay period the leave is taken if the employer uses the workweek method, or alternatively the employer can use a 90-day lookback for determining the average regular rate, that is generally the same as with the normal state paid sick leave law (unless the employer has any flat-sum bonuses involved, in which case the employer will need to use the Alvarado-method of calculating the regular rate, as detailed here). The new law provides for the same pay caps as in previous iterations of supplemental sick leave ($511 per day max). Additional FAQs on this new law are available here.

The 2022 COVID-19 SPSL law sunsets on September 30, 2022.

COVID-19 Workers’ Compensation for Critical Workers: AB 1751

This bill extends the current rebuttable presumption (which we previously blogged about here) that specified injuries resulting from COVID-19 were sustained in the course of employment to January 1, 2025. The measure provides that if an employee has paid sick leave benefits specifically available for COVID-19, those benefits must be exhausted before any temporary disability benefits or benefits under the workers’ compensation system become due.

This measure applies only to the following employees: (1) Active firefighting members, whether volunteers, partly paid, or fully paid, (2) Peace officers who are primarily engaged in active law enforcement activities, as defined by the Penal Code, and (3) Rescue services coordinators who work for the Office of Emergency Services.

Legislation Regarding Franchises

Fast Food Accountability and Standards Recovery Act (or FAST Recovery Act): AB 257

This bill, initially introduced in January of 2021—the first year of the regular session—has been carried over.  It has already passed the lower chamber, and is onto the Senate Judiciary Committee for additional consideration. The bill would establish the Fast Food Sector Council, responsible for creating a fast food workers bill of rights, which would address issues related to wages, working conditions, etc. This onerous bill would require franchisors to ensure franchisee compliance with a variety of employment, worker, public health and safety laws, including those related to unfair business practices, general liability, employment discrimination, the California Retail Food Code, a range of labor regulations, and emergency orders.

The bill also would establish joint and several liability for franchisee non-compliance. The bill would nullify any potential work around by prohibiting any waiver or indemnity provisions. Finally, while the bill would, for the most part, be enforced through the DLSE, ominously, it would afford franchisee employees a private right of action for retaliation against franchisors.

Franchise Sales, Renewals, and Discrimination: AB 676

This is a bill intended to fill some ambiguities that arose after the enactment of AB 525 (Holden), which purportedly offered relief to franchisees. This measure would prohibit discrimination against franchisees, in much the same way that FEHA currently prohibits discrimination against employees. Specifically, the bill would prohibit a franchisor from failing or refusing to grant a franchise, or failing or refusing to provide financial assistance, to a franchisee or prospective franchisee that has been granted or provided to other similarly situated franchisees or prospective franchisees based solely on any characteristic of the franchisee or prospective franchisee, or any characteristic of the composition of the neighborhood or geographic area where the franchise is located or the proposed franchise would be located if that characteristic is protected by the Unruh Civil Rights Act. This would confer protected status based on sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status.

The bill proposes a number of modest reforms, such as clarifying the accounting and payment processes that are applicable when a franchise relationship ends, and clarifying that a franchisee cannot be forced to waive various rights under the law either in a franchise agreement or as a condition of receiving emergency financial assistance. Additionally, the bill provides that the Commissioner of the Department of Financial Protection and Innovation may summarily revoke a franchise seller’s registration if the Commissioner finds: (a) there has been a failure to comply with any of the provisions of this law; (b) an offer or sale of the franchise would constitute misrepresentation, fraud, or deceit of the purchasers; (c) an applicant has failed to comply with any rule or order of the commissioner; or, (d) any person identified in the application or any officer or director of the franchisor creates an unreasonable risk to the prospective franchisee.

Privacy / Worker Information

Reporting and Publicizing Salaries and Wages: SB 1162

The California Chamber of Commerce has listed this measure as a “job killer.”

This bill expands upon SB 973 from 2020 (Jackson)—summarized in detail by Seyfarth—which required that employers with 100 or more employees provide the Department of Fair Employment and Housing (“DFEH”) with specified EEO-1 pay data. This measure would expand that requirement to include an employer that has 100 or more employees including those hired through labor contractors.

One of the biggest saving graces to SB 973 for the business community was that the pay data employers were forced to turn over was for the DFEH only, and was not to be made public. Indeed, the measure specifically exempted such data from coverage under the California Public Records Act and considers confidential any individually identifiable information disclosed to the DFEH under these provisions. SB 1162 would make all of that data public.

The bill additionally would require that all employers provide, in a job posting for an open position, the pay scale for that position, and must provide to an employee the pay scale for the position a person is currently employed in, upon request. The measure would permit an aggrieved worker to file a written complaint with the Labor Commissioner within one year after the date the worker learned of the failure to comply with the above requirements and levies a fine of between $100 and $10,000 per violation.

The Senate Committee on Appropriations held a hearing and passed the measure out of committee on May 19, 2022, with amendments to (1) delay publication of DFEH reports by 1 year, (2) exempt businesses with less than 15 employees, and (3) remove Section 3, which required posting all available internal jobs.

Leave / Accommodations / Retaliation

Bereavement Leave: AB 1949

This bill would amend the California Family Rights Act (“CFRA”) to prohibit an employer from denying a request from an employee with at least 30 days of active service to take up to five days of bereavement leave upon the death of a family member, defined as spouse or a child, parent, sibling, grandparent, grandchild, domestic partner, or parent-in-law. While the days of bereavement leave need not be taken consecutively, the allotted leave must be completed within three months of the date of death of the family member. If the employer does not have a paid bereavement policy, the leave would be unpaid, except that an employee may use vacation, personal leave, accrued and available sick leave, or compensatory time off that is otherwise available to the employee.

The bill also would allow the employer to require documentation of the death of the family member, which can be in the form of a death certificate, a published obituary, or written verification of death, burial, or memorial services from a mortuary, funeral home, burial society, crematorium, religious institution, or governmental agency. The bill would prohibit retaliation for requesting bereavement leave.

Cannabis: AB 2188

The Chamber of Commerce has also labeled this measure a “job killer.” This bill would amend the FEHA by adding off-the-job cannabis use as one of the characteristics protected by the FEHA, which would greatly expand potential monetary exposure through litigation for California employers.

The bill would not prohibit a company from administering a drug test that detects the active presence of THC in an employee’s or prospective employee’s bodily fluids only. But, it would prohibit discrimination against an individual for a positive cannabis test, which the bill contends is unrelated to impairment on the job. The bill would also permit an employer to administer a performance-based impairment test, and terminate the employment of an employee who is determined to be impaired by cannabis on the property or premises of the place of employment.

This provision would not apply to employees in building or construction trades, and it would not preempt state or federal laws requiring employees to be tested for controlled substances.

State of Emergency and Emergency Conditions: SB 1044

This bill provides that, in the event of a natural disaster, emergency condition, or state of emergency, an employer may not: (1) take or threaten adverse action against an employee for refusing to report to or leaving a workplace because they feel unsafe; or (2) prevent an employee from accessing their mobile device for use for emergency purposes. While the definition of a State of Emergency is pretty apparent, the existence of an “emergency condition” is less clear. The bill defines “emergency condition” as either: (1)  conditions of disaster or extreme peril to the safety of persons or property at the workplace caused by natural forces or a criminal act; or (2) an order to evacuate a workplace, a worker’s home, or the school of a worker’s child due to natural disaster or a criminal act.

Recent amendments require the employee to notify the employer of the state of emergency or emergency condition before benefiting from the bill’s provisions, and narrow the definition of state of emergency to require that the emergency poses an imminent and ongoing risk of harm to the worker, the worker’s home, or the worker’s workplace. Regardless, though, the bill would still allow employees to leave work, or refuse to come to work, if the employee subjectively feels unsafe.

Notably, the bill would exclude a health pandemic from a covered state of emergency. It also would exclude from its coverage any employees who are first responders, disaster service workers, healthcare or patient care workers, utility and roadside assistance workers, as well as a number of other categories of essential personnel.

An employer who disciplines an employee for leaving the workplace during an emergency, or prevents any employee from accessing the employee’s mobile device, could be subject to a private lawsuit and penalties under the Private Attorneys General Act (PAGA). A recent amendment, however, added a right to cure for employers, in keeping with worker safety concerns.

Labor

Agricultural Labor Relations: AB 2183

This bill entitles a labor organization to access an employer’s employee list from the Agricultural Labor Relations Board upon providing written notice to the appropriate regional office of the Board that it intends to organize the agricultural employees of the same employer, accompanied by proof of service of the notice upon the employer. The bill attempts to limit the reach of this provision by providing that an employer need not provide more than one employee list within a 30-day period.

As an alternative procedure to the polling place election process set forth in Section 1156.3 of the Labor Code, the bill would permit a labor organization to be certified as the exclusive bargaining representative of a bargaining unit through a representation ballot card election, which permits a bargaining unit to summarily select a labor organization as its representative for collective bargaining purposes without holding a polling place election. The measure sets forth all the various requirements for a labor organization that applies to represent a particular bargaining unit. The Board must certify the labor organization as the exclusive bargaining representative if the board determines that the labor organization has submitted the required number of representation ballot cards and the cards meet specified criteria.

Wage and Hour

Wages, Final Payment: AB 2133

This bill would amend Section 201 of the Labor Code to reduce the amount of time to pay final wages from 72 to 48 hours in the event of a layoff of seasonal employees employed in the curing, canning, or drying of any variety of perishable fruit, fish, or vegetables.

Wage Withholdings: SB 505

This two-year measure has already passed the Senate and is on to the Assembly, but no action has been taken on this measure since June 17, 2021. This bill would provide that, prior to garnishing a public employees’ wages when the employer is required or empowered to do so by state or federal law, employers must make a good faith effort to consult with an employee to obtain a written authorization to resolve monetary obligations before employing third-party collection services. Where a written authorization provides for a withholding or diversion of an employee’s wages, the bill would prohibit the amount withheld or diverted from exceeding 5% of the employee’s monthly gross wages.

Meal and Rest Periods for Public Hospital Employees: SB 1334

This measure would extend to employees of specified public sector employers who provide direct patient care or support direct patient care in a general acute care hospital, clinic, or public health setting the same statutorily required meal and rest break afforded to employees in the private sector. That is, these employees would be statutorily entitled to one unpaid 30-minute meal period on shifts over 5 hours and a second unpaid 30-minute meal period on shifts over 10 hours, as well as one 10-minute paid rest period for every 4 hours worked or major fraction thereof. The same premium pay of one hour of pay at the employee’s regular rate of compensation for each workday that a meal or rest period that is not provided would also be required. Workers covered by a CBA would be exempted.

Private employers across California have long dealt with these kinds of claims in the class and PAGA context—be wary public sector employers!

A Slew of Workers’ Compensation Bills

Liability Presumptions: SB 1127

This bill has three main thrusts: (1) reducing the time period for an employer to reject liability for an injury from 90 days to 45 days; (2) for certain first responders, increases the penalty to five times the amount of the delayed benefits, but not to exceed $100,000, when liability is unreasonably rejected by an employer; and (3) doubles the duration of temporary disability for cancer presumption claims for those same first responders. The Workers’ Compensation Appeals Board would have exclusive jurisdiction to determine whether the rejection of liability is reasonable. As expected, this measure is supported by labor and opposed by the business community.

Requests for Information: AB 399

This bill, or the Medical Provider Network Transparency Act of 2022, as introduced would have solely authorized an employee alleging an on-the-job injury to request the medical provider network name and identification number. The measure underwent a significant gut and amend in the Senate Committee on Labor, Public Employment and Retirement on May 23, 2020.

As amended, for purposes of the workers’ compensation system, this bill would provide that if an independent bill review organization—existing law permits a medical provider to request an independent bill review for disputes relating to the amount of payment and authorizes the imposition of fees for this purpose—finds that an employer owes the medical provider, the bill would require the independent bill review organization to bill the employer for the additional review fees. If the employer is found to not owe the medical provider, the bill would require the independent bill review organization to bill the provider for the additional review fees. Employers would be required to pay any additional amounts found owed within 30 days of the final determination.

Disability Payments: AB 2148

The bill would extend until January 1, 2024, a current law that permits employers to commence a program under which disability payments are deposited in a prepaid card account.

Labor Contracting: AB 2614

Would require a “client employer” that is subject to Industrial Wage Commission (IWC) Orders Nos. 1 or 7—manufacturing and mercantile industries—to procure independently of any labor contractor, a valid workers’ compensation insurance policy for any contracted workers providing labor within its usual course of business. A “client employer” is defined as a business entity, regardless of its form, that obtains or is provided workers to perform labor within its usual course of business from a labor contractor. The stated intent of this legislation is to ensure that all contracted workers of labor contractors performing labor within a client employer’s usual course of business are covered by a valid workers’ compensation insurance policy.

This measure was inspired by a recent string of workers’ compensation fraud by operators of staffing agencies (also known as labor contractors) who are providing services to employers. According to the author, “AB 2614 will close a loophole in state law that allows companies with poor worker safety records to utilize staffing companies to avoid paying the financial costs associated with the companies’ safety records.”

Hospital Employees: SB 213

This is a two-year bill that has already passed the Senate and is now being held by the Assembly. The California Chamber of Commerce has tagged this bill as a “job killer.” This measure would build upon SB 1159, which Seyfarth summarized here, which created two presumptions: one that is specific to frontline workers (peace officers, firefighters, healthcare providers, homecare workers and IHSS workers), and a general presumption for employees who contract COVID-19 in the midst of a workplace outbreak. Of import to SB 213 is the former, which applied to health care workers.

This bill would create rebuttable presumptions within the workers’ compensation system that specified infectious diseases such as COVID-19, cancer, musculoskeletal injury, post-traumatic stress disorder, or respiratory disease are occupational injuries for a direct patient care workers employed in an acute care hospital. This presumption would be extended following termination of employment for a period of three months for each full year of employment, not to exceed 60 months. SB 213 also removes the sunset date of the presumption for COVID-19 for direct care workers in an acute care hospital by including the presumption in a different code section.

Miscellaneous Employment Bills

Call Centers: AB 1601

This bill would require an employer of employees in a call center that intends to relocate from this state to notify the Labor Commissioner at least 120 days before the relocation. The bill would authorize the Labor Commissioner to impose a civil penalty of up to $10,000 for every day that an employer fails to provide this notice. The Labor Commissioner would be required compile a list of employers that provide the requisite notice and employers appearing on the list would be ineligible to be awarded or have renewed state grants or state-guaranteed loans for 5 years after the date that the list is published, and those companies would be ineligible to claim tax credits for 5 taxable years beginning on and after the date that the list is published. Private entities that have contracted with the state for call center services as of January 1, 2023, must ensure that a certain percentage of services are performed in California.

Background Checks: SB 1262

This bill was inspired by the California Court of Appeal decision in All of Us or None of Us. v. Hamrick, which held that an individual’s date of birth and driver’s license number could not be used as data identifying a criminal defendant in public records. This caused courts around the state to redact birth dates and driver’s license numbers from their indexes, making routine background checks much more difficult. This bill would require publicly accessible electronic indexes of defendants in criminal cases to permit searches and filtering of results based on a defendant’s driver’s license number or date of birth.

Extending Statute of Limitations: AB 2777

The concerning measure would amend the Code of Civil Procedure to permit a putative plaintiff, from January 1, 2023, to December 31, 2023, to press a cause of action in court based on sexual assault or “other inappropriate conduct,” regardless of whether that claim would be barred by the applicable statute of limitations, so long as the actions occurred on or after January 1, 2009. Essentially, this would mean that a putative plaintiff may bring one of a number of vaguely-defined claims, regardless of how stale those claims are, from January 1, 2023, to December 31, 2023. This is despite the fact that AB 1619 (Berman – 2018), already provides for a lengthy ten-year statute of limitations for claims relating to a sexual assault.

Moreover, claims that would be brought under this bill can be “revived” during the free for all period include all claims seeking more than two hundred fifty thousand dollars ($250,000) in damages “arising out of a sexual assault or other inappropriate contact, communication, or activity of a sexual nature that would otherwise be barred before January 1, 2023,” but the statute does not endeavor to define what constitutes “activity of a sexual nature.”

An aggrieved employee or former employee can only bring suit against an employer—essentially defined as sole proprietorship, partnership, limited liability company, corporation, association, or other legal entity—where the putative plaintiff alleges that the employer engaged in a cover up or attempted a cover up of a previous instance or allegations of sexual assault or other inappropriate conduct, communication, or activity of a sexual nature.

The measure does try to place some guard-rails, but not enough, on the strikingly broad provisions summarized above—AB 2777 requires an attorney to provide a certification to the court after filing a complaint that: (1) they believe a cover-up or attempted cover-up took place; (2) that they had the victim interviewed by a mental health practitioner, who finds a “reasonable basis to believe” that “sexual assault or other inappropriate conduct, communication, or activity” took place; and (3) that the attorney believes the case is worth filing.

Two Concerning Measures Didn’t Hurdle the January Deadline

The bills below were placed on the inactive file in the summer of 2021. Those measures faced a January 31 deadline to come off the file, but the Legislature declined. As such, those measure are now dead, but it is highly likely that the substance of AB 995 comes back in another legislative form in the future.

Worker Metrics: AB 1192

This bill would have placed new onerous administrative burdens on employers by requiring them to publish extensive, private salary and benefit information on the Labor and Workforce Development Agency’s (“LWDA”) website. Public disclosure of completely lawful policies and conduct could give the false impression of wage disparity where none may exist and subject employers to frivolous litigation and settlement demands.

Paid Sick Days: AB 995

This bill would have imposed new costs and leave requirements on employers of all sizes, by expanding the number of paid sick days employers are required to provide, which is in addition to all of the recently enacted leave mandates (COVID-19 sick leave, Cal/OSHA emergency paid time off, CFRA leave, workers’ compensation, etc.) that small employers throughout the state are already struggling with to implement and comply.

Gone But Not Forgotten: Bills That Failed House of Origin Deadline

The bills below are officially dead for failure to pass before the House of Origin Deadline, but many of the measures can be introduced in a new form in the next session.

COVID-19 Vaccine Mandate: AB 1993

This bill would have added section 12940.4 to the Government Code to require each person who is an employee or independent contractor, and who is eligible to receive the COVID-19 vaccine, to show proof to the employer that the person has been vaccinated against COVID-19. By January 1, 2023, each employer in the state would have been required to affirm that each employee or independent contractor complied with these provisions, and the bill would require the employer to affirm that each new employee or independent contractor is in compliance at the time of hiring or contracting with that person.

Flexible Work Schedule: AB 1761

This bill would have enacted the Workplace Flexibility Act of 2022, which would have permitted a nonexempt employee to request an employee-selected flexible work schedule providing for workdays up to 10 hours per day within a 40-hour workweek, and would allow an employer to implement this schedule without the obligation to pay overtime compensation for hours over 8 in a workday.

Altering the Workweek, Hours and Overtime: AB 2932

This bill would have drastically altered the current 40-hours a week, 8-hours a day working paradigm we have followed in this country for decades. Instead of the current requirement that employers pay time and a half for any work above 40 hours, this bill would have required time and a half for work in excess of only 32 hours a week, and would have prohibited an employer from reducing an employee’s overall previous compensation as a result of this reduced hourly workweek requirement.

Biometric Information: SB 1189

This bill would have, beginning September 1, 2023, required a private entity in possession of biometric information—fingerprints, retina, or iris images, among others—to develop and make available to the public a written policy establishing a retention schedule and guidelines for permanently destroying the biometric information in its possession. Private entities would be prohibited from disclosing biometric information unless certain criteria are met, including where the disclosure completes a financial transaction requested or authorized by the subject of the biometric information, and from conditioning the provision of a service on the collection, use, disclosure, transfer, sale, or processing of biometric information. Perhaps the most worrisome aspect of this measure was that it would have authorized a private right of action against a private entity for violation of the measure.

Worker Metrics: AB 2095

This bill would have required employers with 1,000 or more employees in California to submit various statistics regarding those employees to the LWDA. The LWDA would then use that information to rank employers that would qualify as an employer eligible to be certified as a high-road employer, which comes with certain benefits such as procurement contracts, tax benefits, and workforce development funding. The statute did not define “high-road” employer, but rather directed the LWDA to “develop criteria and a scoring methodology” to determine what qualifies as high-road employers.

The bill would have required employers to divulge an abundance of wage and hour data, including number of workers in the U.S., median pay for all workers in the U.S., and percentage of full-time workers earning above the U.S. living wage, amongst other disclosures. Additionally, this measure would have required the agency to “publish on its internet website all worker-related statistics submitted by all employers.”

Family Responsibilities: AB 2182

A repeat of AB 1119 from last year, and labeled a job killer by the California Chamber of Commerce, this bill would have added “family responsibilities”—defined as the obligations of an employee to provide ongoing care for a minor child or a care recipient—to the list of FEHA-protected characteristics for which employers must engage in the interactive process and provide reasonable accommodation to an applicant or employee.

Gender Disparity: SB 1458

This bill would have increased the payment of disability benefits under the workers’ compensation system by the percentage of disparity in earnings between genders and would have applied prospectively to injuries occurring on or after January 1, 2023. More specifically, after determining the base amount a worker is owed, this bill would have directed the workers’ compensation administrator to add to that amount by the percentage of disparity in earnings between genders as reported by the applicant’s employer in its pay data report to the DFEH.

Licensed Manicurists – Independent Contractor Classification: AB 1818

This measure would have made permanent the exception to the ABC test for the determination of worker classification for licensed manicurists. Whether a licensed manicurist is an independent contractor or employee would have been governed by the standard established in S.G. Borello & Sons, Inc. v. Department of Industrial Relations.

Exclusivity Options: AB 2926

Some may recall AB 1385 from last year, which dealt with workers in the music and television industries. Assemblymember Ash Kalra took on a similar bill this year but it failed the House of Origin deadline. Specifically, this bill would have prohibited a contract for the exclusive personal services of a musician or actor from containing a term that includes option periods which extend more than six months (for a musician) or twelve months (for an actor) after the earlier of: (a) the satisfaction of the delivery obligation for a contract period by the musician or actor or (b) the initial commercial release of the applicable music product or the actor’s commencement of performance.

Opioids: AB 2014

AB 2014 was a spot bill with the stated intent of amending the Labor Code as it relates to Worker’ Compensation coverage for injuries caused by the opioid crisis.

Workplace Solutions

While there are some small glimmers of hope, and indeed some measures that would ease administrative burdens on employers, many of the bills that remain are worrisome for the business community. While employers should prepare for the passage of each of the measures above, the legislative session is still in its infancy, and those bill will almost certainly see significant amendments. We’ll keep you updated here at Cal Peculiarities, and you can also check out our Policy Matters podcast and newsletter for regular check-ins on California (and national) policy and legislative updates as well.

Edited by Coby Turner and Elizabeth Levy

Seyfarth Synopsis: On April 21, 2022, the Cal/OSHA Standards Board (“Board”) voted 6-1 to approve a third adoption of the Cal/OSHA COVID-19 emergency temporary standard (“ETS”). The revised ETS will likely go into effect the first week of May and will expire on December 31, 2022.

Background

As we previously blogged, the first iteration of the Cal/OSHA ETS took effect on November 30, 2020. It was initially readopted and revised on June 17, 2021, and then again (called the “second readoption”) on December 16, 2021. The second readoption, which is currently in effect is set to expire on May 6, 2022. Normally, an emergency regulation can only be readopted twice, but by Executive Order, a third readoption of the COVID-19 ETS is permitted so long as it does not extend beyond December 31, 2022.

Now that the Board has voted to approve the third readoption, which is substantively identical to the proposed rule Cal/OSHA published several weeks ago, the revised ETS will go into effect once the Office of Administrative Law completes its review and files with the Secretary of State, likely by the first week in May.

Highlights of the Revised ETS

Much of the current ETS (which we blogged about here) will remain intact. But, the proposed changes are significant for businesses and employees, and remove some requirements. Cal/OSHA has said that updated guidance in the form of FAQs is forthcoming. In the meantime, highlights of the revised ETS include:

  • Removing the definition of “fully-vaccinated” from the ETS. This is significant because it means the ETS will no longer distinguish between fully-vaccinated and not-fully-vaccinated employees. In other words, most requirements of the ETS will apply in the same manner regardless of vaccination status, including:
    • Testing Requirements: Employers will have to offer testing to all symptomatic employees, and all employees with a workplace close contact, regardless of vaccination status. Testing must be provided at no cost to the employee, and during paid working time. The only exception will be based on whether an exposed employee recently recovered from COVID-19 (see below).
    • Providing Respirators: Employers must offer respirators (e.g., N95s) to employees upon request. Now, all employees (regardless of vaccination status) are entitled to a respirator for voluntary use, free of charge, if they ask for one.
  • A new term, “returned cases,” has been added, referring to employees with naturally-conferred immunity, i.e. employees who have recovered from COVID-19 in the past 90 days and remain symptom free.
    • If such employees have had a workplace close contact, employers are not required to offer them testing. Nor are employers required to offer such employees testing if they are part of an outbreak’s “exposed group.”
  • Face coverings are no longer required for employees who are not fully vaccinated. This has been the case since February 28, 2022, when Governor Newsom issued an Executive Order overriding the ETS. The third readoption codifies that Executive Order.
  • Face coverings will still be required:
    • If the CDPH issues orders requiring them;
    • For employees who have tested positive and are returning to work before 10 days have passed since their symptoms began, or 10 days since they tested positive if they never developed symptoms; or
    • For all employees indoors in an exposed group during a workplace outbreak or major outbreak, or those outdoors who cannot maintain 6 feet of distance from others.
  • In situations where face coverings are required, but employees are exempted from wearing them, those employees will no longer need to be kept at least six feet apart from others in the workplace, however they will still need to be tested at least weekly.
  • The definition of face covering will be updated to remove the requirement that they “not let light pass through when held up to a light source.”
  • Removing static requirements for employees who had a close contact, and instead requiring employers to follow current CDPH guidance on close contacts(note these change frequently).
  • Changing the term “high risk exposure period” to “infectious period.” Substantively, the change has no impact; it simply aligns the language of the ETS with the language used by public health authorities.
  • Cleaning and disinfection requirements are removed.
  • During a major outbreak, partitions will no longer be required for exposed groups working together for an extended period but who can’t maintain distance, such as at cash registers, desks, and production line stations.
  • The definition of testing will be updated to allow for self-administered and self-read tests for purposes of return-to-work, but only if another means of independent verification of the results can be provided (e.g., a time-stamped photograph of the results).
  • Inclusion of an explicit requirement that unredacted personal identifying information about COVID-19 cases has to be shared with the local health department, CDPH, and NIOSH immediately upon request.
    • Note that many employers have been uncomfortable sharing the breadth of information being requested by some of these entities based on employee privacy concerns, and have been wanting to redact or leave blank. The ETS now says clearly that the information must be turned over.

Workplace Solutions

Stay tuned for updated guidance and developments on the workplace safety front in California. Don’t hesitate to reach out to your favorite Seyfarth attorney should you have any questions.

Edited by Elizabeth Levy

Seyfarth Synopsis: The Cal/OSHA Standards Board (“Board”) has published proposed language for the third adoption of the Cal/OSHA COVID-19 emergency temporary standard (“ETS”), which will be voted on during the upcoming April 21, 2022 Board meeting. The ETS, assuming it is readopted, will expire on December 31, 2022.

Background

The first iteration of the Cal/OSHA ETS took effect on November 30, 2020. It was initially readopted and revised on June 17, 2021, and then again (called the “second readoption”) on December 16, 2021. The second readoption is set to expire on May 6, 2022, after being extended by Executive Order. Normally, an emergency regulation can only be readopted twice, but the Governor issued an Executive Order in December 2021 permitting a third readoption of the ETS, so long as it does not extend beyond December 31, 2022.

The Board will hold a meeting on April 21, 2022, to vote on the new proposed language. In the meantime, the Board is accepting comments on the proposal, but because this is an emergency regulation, changes prior to the vote are unlikely. As with past meetings, it is expected that the Board will vote to approve and adopt the proposed third iteration of the ETS.

What’s New?

Much of the current ETS (which we blogged about here) will remain intact. But, the proposed changes are significant for businesses and employees, and will include removal of some requirements. Highlights include:

  • Removing the definition of “fully-vaccinated” from the ETS. This is significant because it means the ETS will no longer distinguish between fully-vaccinated and not-fully-vaccinated employees. In other words, most requirements of the ETS will apply in the same manner regardless of vaccination status, including:
    • Testing Requirements: Employers will have to offer testing to all symptomatic employees, and all employees with a workplace close contact, regardless of vaccination status. Testing must be provided at no cost to the employee, and during paid working time. The only exception will be based on whether an exposed employees has recently had and recovered from COVID-19 (see below).
    • Provision of Respirators: Employers must offer respirators (e.g., N95s) to employees upon request. Now, all employees regardless of vaccination status are entitled to a respirator for voluntary use, free of charge, if they ask for one.
  • A new term, “returned cases,” has been added, referring to employees with naturally-conferred immunity, i.e. employees who have recovered from COVID-19 in the past 90 days and remain symptom free.
    • If such employees have had a workplace close contact, employers are not required to offer them testing. Nor are employers required to offer such employees testing if they are part of an outbreak’s “exposed group.”
  • Face coverings are no longer required for employees who are not fully vaccinated. This has been the case since February 28, 2022, when Governor Newsom issued an Executive Order overriding the ETS. The third readoption codifies that Executive Order.
  • Face coverings will still be required:
    • If the CDPH issues orders requiring them;
    • For employees who have tested positive and are returning to work before 10 days have passed since their symptoms began, or 10 days since they tested positive if they never developed symptoms; or
    • For all employees indoors in an exposed group during a workplace outbreak or major outbreak, or those outdoors who cannot maintain 6 feet of distance from others.
  • In situations where face coverings are required but employees are exempted from wearing them, those employees will no longer need to be kept at least six feet apart from others in the workplace, however they will still need to be tested at least weekly.
  • The definition of face covering will be updated to remove the requirement that they “not let light pass through when held up to a light source.”
  • Removing static requirements for employees who had a close contact, and instead requiring employers to follow current CDPH guidance on close contacts (note these change frequently).
  • Changing the term “high risk exposure period” to “infectious period.” Substantively, the change has no impact; it simply aligns the language of the ETS with the language used by public health authorities.
  • Cleaning and disinfection requirements are removed.
  • During a major outbreak, partitions will no longer be required for exposed groups working together for an extended period but who can’t maintain distance, such as at cash registers, desks, and production line stations.
  • The definition of testing will be updated to allow for self-administered and self-read tests for purposes of return-to-work, but only if another means of independent verification of the results can be provided (e.g., a time-stamped photograph of the results).
  • Inclusion of an explicit requirement that unredacted personal identifying information about COVID-19 cases has to be shared with the local health department, CDPH, and NIOSH immediately upon request.
    • Note that many employers have been uncomfortable sharing the breadth of information being requested by some of these entities based on employee privacy concerns, and have been wanting to redact or leave blank. The ETS now says clearly that the information must be turned over.

When Will This End?

The ETS, assuming it is readopted this third time, will expire on December 31, 2022. So while much of the rest of the country moves on from burdensome COVID-19 requirements, California employers will still be under the weight of the Cal/OSHA ETS for the remainder of this year. That includes (but is not limited to) requirements to continue notifying employees any time a COVID-19 case has been onsite during the infectious period, and to continue “exclusion pay” for eligible employees with workplace exposure.

And after December 31, 2022? COVID-19 regulation in California is unlikely to disappear. Word on the street is that Cal/OSHA may seek to make the third readoption a permanent standard until it ultimately replaces it with a more general airborne infectious disease prevention standard. So don’t plan on throwing your notification templates or written COVID-19 Prevention Plan in the trash just yet.

Workplace Solutions

Stay tuned for the rapid fire developments on the workplace safety front in California. Don’t hesitate to reach out to your favorite Seyfarth attorney should you have any questions.

Edited by Elizabeth Levy

Seyfarth Synopsis: On February 28, 2022, California’s Governor Newsom issued a press release lifting California’s mask requirements for unvaccinated individuals in indoor settings, downgrading the former requirement to a strong recommendation, effective March 1, 2022.  The same day, the California Department of Public Health (“CDPH”) published updated guidance, tracking Governor Newsom’s announcement. Later on February 28, Governor Newsom issued a press release and Executive Order overriding Cal/OSHA’s COVID-19 Emergency Temporary Standards, suspending the agency’s workplace requirement that unvaccinated workers wear masks in most indoor settings. Several localities have followed suit.

Until Now, California Has Consistently Mandated Masks for the Unvaccinated Indoors Throughout the Pandemic

California’s mask-related reactions to the ever-changing COVID-19 landscape over the last two years have been well-documented here, here, here, and here.  Most recently, on December 16, 2021, Cal/OSHA readopted its COVID-19 Emergency Temporary Standards (“ETS”), effective January 14, 2022, which required unvaccinated employees to wear a well-fitted mask and also required that any additional masking required by the CDPH be enforced in the workplace. However, in response to the holiday Omicron variant surge, the CDPH required that all individuals mask up, regardless of vaccination status, from December 15, 2021 until February 15, 2022.

Mask Requirement Eased for General Public in Indoor Settings

On February 7, 2022, the CDPH updated its masking guidelines, effective February 16, 2022, allowing vaccinated individuals to shed masks but requiring unvaccinated individuals to wear masks in indoor public settings, including offices and other workplaces. This again aligned the CDPH with Cal/OSHA.

Shortly thereafter, on February 28, 2022, Governor Newsom announced California was transitioning from its longstanding practice of requiring unvaccinated individuals to mask up indoors in nearly all circumstances to a strong recommendation that they do so in most settings, effective March 1, 2022, essentially allowing all individuals to remove masks indoors, except in the workplace under the Cal/OSHA ETS.  This brought California in line with other West Coast states.  Coordinating with California, the governors of Oregon and Washington simultaneously announced that masking for the unvaccinated would no longer be required as of 11:59 pm on March 11, 2022 in the Northwest.

Following Governor Newsom’s announcement, the CDPH issued updated masking guidance.  The CDPH called attention to three main updates:

  1. Effective March 1, 2022, the requirement that unvaccinated individuals mask in indoor public settings became a strong recommendation that all persons, regardless of vaccine status, continue indoor masking;
  2. Universal masking will remain required in specified high-risk settings; and
  3. After March 11, 2022, the universal masking requirement for K-12 schools and childcare settings will end. The CDPH, however, continues to strongly recommend that individuals in these settings continue to mask in indoor settings when the universal masking requirement lifts.

Masking Still Required in High-Risk Settings.  Subject to certain exemptions, the CDPH’s masking requirement for all, regardless of vaccination status, continues in the following settings:

  • Indoors in K-12 schools (through March 11, 2022)
  • On public transit (examples: airplanes, ships, ferries, trains, subways, buses, taxis, and ride-shares) and in transportation hubs (examples: airport, bus terminal, marina, train station, seaport or other port, subway station, or any other area that provides transportation)
  • Emergency shelters and cooling and heating centers
  • Healthcare settings (applies to all healthcare settings, including those that are not covered by the State Health Officer Order issued on July 26, 2021)
  • State and local correctional facilities and detention centers
  • Homeless shelters
  • Long Term Care Settings & Adult and Senior Care Facilities

Guidance for Guest and Customer Masking. The CDPH guidance also includes suggestions for businesses, venue operators, and event hosts to assist them in navigating this new recommendation standard.  The CDPH recommends, but does not require, businesses to:

  • Provide information to all patrons, guests and attendees regarding masking recommendations for all persons, regardless of vaccine status.
  • Provide information to all patrons, guests and attendees to consider better fit and filtration for masks, such as using surgical masks or higher-level respirators (e.g., N95s, KN95s, KF94s) over cloth masks.
  • Require all patrons to wear masks, especially when risk in the community may be high, or if those being served are at high-risk for severe disease or illness.
  • Require attendees who do not provide proof of vaccination to enter indoor Mega Events to continue masking during the event, especially when not actively eating or drinking.

Now, except in specified high-risk settings, California only strongly recommends indoor mask-wearing for all Californians, regardless of vaccination status.

Indoor Mask Requirement Eased for Employees

With the issuance of the February 28, 2022 CDPH guidance, it was unclear whether or how the new masking recommendations applied to employees because the Cal/OSHA ETS continued to require masking for unvaccinated employees in the workplace, but also required compliance with any masking order from the CDPH.

Late in the evening of February 28, 2022, Governor Newsom resolved the paradox by issuing a short Executive Order that suspended the Cal/OSHA ETS requirement that unvaccinated employees wear masks while indoors or in vehicles (i.e., Section 3205(c)(6)(A)) of the ETS), effective immediately.  As a result, when the CDPH order went into effect on March 1, it lifted not only the indoor masking requirement for the unvaccinated general public, but also employees.

Importantly, other sections of the Cal/OSHA ETS that require face coverings in certain scenarios have not been suspended. Which means that for the time being, face coverings are still required in the workplace as follows:

  • If the employer has onsite indoor health screening (something that most employers have moved away from by now), the employees being screened and the screeners need to wear face coverings, regardless of vaccination status.
  • In the event of an “outbreak” or a “major outbreak,” employees in the exposed group must wear face coverings when indoors, regardless of vaccination status.
  • For employees who have had a COVID-19 exposure and are either exempt from quarantine or ending their quarantine after Day 5, and for employees who have tested positive for COVID-19 and are returning to work after Day 5. Details available here.

ETS Re-Adoption Period Extended by 21 Days to May 6, 2022

In addition, the Governor’s February 28 Executive Order extended the 90-day effective period of the operative ETS by 21 days to May 6, 2022. Employers should be on the lookout for new changes to the ETS at that time.

California Localities Follow the State

As of the time of publication, several major California cities and counties that previously had different masking requirements indicated their plans to come into line with California’s new masking recommendation:  Los Angeles County (announced a tentative plan to roll back indoor mask mandate on March 4, 2022 following the CDC’s COVID designation); Los Angeles (City) (on February 25, 2022, Mayor Garcetti tweeted that the City would align with the County’s guidance on masking); Santa Clara County (announced a plan to lift indoor mask mandate as of March 2, 2022), and San Francisco (announced alignment with State to “recommend, but not require” masks in schools and child care settings after March 11).

Workplace Solutions

As always, Seyfarth will stay on top of the constantly changing COVID-19 landscape, and the challenges it poses to employers.  If you have any questions, please don’t hesitate to reach out to one of the authors of this post or a member of our Workplace Safety team.

Edited by Elizabeth Levy

Seyfarth Synopsis: In recognition of PAGA’s failure to protect California’s workers for the past 18 years, and the tremendous toll it has taken on California businesses, 2022 is the year to pass a proposed ballot initiative to amend this troublesome statute. The California Fair Pay and Accountability Act on the ballot this year aims to replace PAGA with alternative Labor Code enforcement mechanisms by the Labor Commissioner.

The Private Attorneys General Act of 2004 (“PAGA”) is an 18-year old problem that California just cannot seem to kick. Will 2022 finally be the year that California gets its act together and rids itself of PAGA once and for all? Voters may have the opportunity to decide at the ballot box in November.

Why is PAGA a Problem?

PAGA was enacted in 2004 to help the Labor Commissioner’s office enforce California’s labor laws. It does this by “deputizing” private attorneys to file lawsuits on behalf of employees who, in concept, stand in the shoes of the state. Penalties for a multitude of alleged violations can stack up quickly and are ongoing, coming in at $100 to $200 per pay period per employee, even for administrative errors or pay mistakes that may be off by a few cents.

There have been two primary issues with PAGA for California employers:

First, PAGA has eviscerated many of the safeguards the legal system has put into place to prevent frivolous lawsuits. Because employees who decide to sue and their private attorney are “standing in for the state,” their power to sue a business for anything and everything is essentially unchecked. For example:

  • Employees can sue employers based on Labor Code violations they never experienced (or perhaps did not even know about until getting into their discovery relating to an entirely different claim).
  • Employees filing suit can bypass intentionality or willfulness requirements included in the Labor Code as established by the Legislature.
  • Employees can sue in a venue in which they’ve never set foot. So, for instance, an employee can forum shop to sue in the most employee-friendly jurisdiction in the state.
  • Employees can settle their individual claims for money and then still sue as a representative under PAGA for the exact same claims on behalf of a larger group of employees who have never made a complaint.

Second, the law has been manipulated by plaintiffs’ attorneys at the expense of workers, employers, and the state. Because a PAGA claim is so easy to bring, attorneys regularly add the claim to a lawsuit or demand letter. By 2016, well in excess of 4,000 of these cases were filed against California businesses in one year alone—an increase of over 1000% in filings from the first year of the law’s enactment!

The threatened sky-high penalties in these actions are leveraged against employers to extort high settlements, because the cases are often too expensive to litigate. Once these plaintiffs’ attorneys have secured a settlement on a PAGA threat, the settlement agreements are then written to allocate very little monetary recovery to the PAGA claims, so that the state and workers who are supposed to benefit get nominal sums while the attorneys walk away with one-third or more of the total settlement amount.

A review of recent data shows us that it is indeed plaintiffs’ attorneys who are benefitting from PAGA. Workers who pursue claims through PAGA court cases recover an average of $1,200. Meanwhile, PAGA attorneys usually demand a minimum of 33% of the workers’ total group recovery, or $372,000 on average, no matter how much legal work was actually performed. Workers suing through PAGA also wait over 500 days on average to receive their small amount of recovery.

The Solution: The California Fair Pay and Employer Accountability Act

Despite acknowledgements by both legislators and governors that PAGA is a problem, next to nothing has been done to reform it. In light of PAGA’s failure to protect workers or employers, CalChamber, the New Car Dealers Association, the Western Growers Association, and the California Restaurant Association are sponsoring a ballot initiative titled “The California Fair Pay and Employer Accountability Act.”

The initiative:

  • Replaces PAGA, giving the Labor Commissioner the right to levy penalties if the law does not otherwise provide for them, including increasing penalties for willful violations.
  • Provides that 100% of penalties will go to the workers (instead of the 25% of the penalties that workers currently receive under PAGA lawsuits).
  • Creates a Consultation and Publication Unit that employers can use to obtain binding guidance about how to apply the Labor Code.

CalChamber’s annual voter poll demonstrates that voters support this reform. When asked to choose between the two major arguments on each side of the proposed initiative, voters agreed with the proponents by a margin of 79% to 21%.

The California Fair Pay and Employer Accountability Act is an opportunity to reform labor law enforcement to prevent frivolous litigation while ensuring that workers receive the wages they are owed in a timely manner, plus any penalties. The Act would  also benefit both workers and employers by allowing employers to consult the Labor Commissioner when there is an ambiguity in the law, to help make sure they are in compliance. Eliminating PAGA is a resolution we should all make for 2022.

Workplace Solutions

Learn how you can help at: Help CA Workers and Businesses by Replacing PAGA (stoptheshakedown.com). California businesses and workers can make a change for the better by getting rid of PAGA once and for all in 2022!

Edited by Coby Turner and Elizabeth Levy

Seyfarth Synopsis: SB 62, which became effective January 1, 2022, makes those involved in the chain of garment manufacturing jointly and severally liable for certain labor law violations, and eliminates piece-rate compensation for workers in the garment industry. As expected, the Labor Commissioner is stepping up enforcement in the new year and those in the industry should ensure they don’t run afoul of SB 62’s new requirements.

Valentine’s Day is quickly approaching, which means mailboxes will soon be filled with colorful greeting cards, boxes of candies and chocolates, and romantic notes from our loved ones. But for those in the garment industry, this year’s holiday might bring with it not just a lovely Valentine, but also an uptick in enforcement measures from the Labor Commissioner’s Office.

Love Is In The Air, But Not For Those Who Fail To Pay The Minimum Wage

As we predicted back in May, the aptly named Garment Worker Protection Act (“SB62”) was signed into law in October and took effect on January 1, 2022. This law eliminates piece-rate compensation and requires garment manufacturers to pay employees at least the minimum wage.

Even more significantly, the new law holds all entities “engaged in the business of garment manufacturing” jointly and severally liable for any failures to pay minimum wage and overtime pay, regardless of how many others are involved in the chain of manufacturing. For example, a retailer who contracts with a subcontractor to perform garment manufacturing operations can now be found jointly and severally liable with the subcontractor, and any of the subcontractor’s subcontractors, no matter how many steps removed they may be from the retailer. Those newly-subject to the Act may be confounded as to whether they are engaged in the business of “garment manufacturing” because the already broad term has been expanded to mean “assembling, dyeing, altering a garment’s design, causing another person to alter a garment’s design, [or even] affixing a label to a garment.”

The Department of Industrial Relations took the publication of the alleged violation as an opportunity to warn all in the garment manufacturing industry that the new law is here and will be enforced. Indeed, as the Labor Commissioner’s news release states, SB 62 will “change the way many garment manufacturers operate.” Thus, we surmise that this friendly update was not designed to spread love and holiday cheer, but rather serves as a strict warning to those in the garment industry that the Labor Commissioner intends to prioritize enforcement of SB 62.

Check Those Mailboxes­—Enforcement Orders May Be On Their Way

At the turn of the new year, the Labor Commissioner issued a news release warning garment manufacturers that it had recently revoked the license of a Los Angeles garment manufacturer for labor law violations. The notice alleges that the garment manufacturer in question had falsely claimed it had no employees, but an inspection by the Labor Commissioner’s Office revealed quite the opposite. The manufacturer was cited for failing to provide proof of workers’ compensation insurance and ordered to cease work until the issue could be remedied.

The Labor Commissioner reported that after multiple attempts to contact the manufacturer went unanswered, and after an inspector was turned away on a follow-up visit, the Labor Commissioner had no choice but to revoke the manufacturer’s license for willfully violating labor law. This holiday story serves as a careful reminder to all in the garment industry that the Labor Commissioner has its eye on you and yours, and that the newly enacted Garment Worker Protection Act will be enforced with authority.

Don’t Get Caught without a Valentine—Ensure Compliance with the New Law Now

On January 25, 2022, the Labor Commissioner’s Office hosted a free training on SB 62, and is set to host regular training on the subject in the future. At this training, the Labor Commissioner’s Office made it abundantly clear that enforcement of SB 62 is well under way, and as of January 1, 2022, piece-rate compensation is unlawful (with narrow exceptions). Industry employers, manufactures, retailers, and all who are interested in learning more and registering for future trainings are encouraged to visit the Labor Commissioner’s website here.  The Labor Commissioner’s Office is also reportedly conducting in-person outreach to those in the industry, so be on the lookout for a postcard or visit from your local inspector.

Workplace Solutions

With SB 62 enacted, and the Labor Commissioner prioritizing enforcement of the newly-added provisions, employers should ensure they are complying with the new requirements and be prepared to respond to any inspection, inquiry, or audit that may come through their front door or mailbox. Your Seyfarth counselors are here to help you with negotiating contracts and looking at labor and employment compliance as needed in your supply chain.

Edited by Coby Turner

Seyfarth Synopsis: On February 9, 2022, Governor Gavin Newsom enacted the 2022 iteration of California’s COVID-19 supplemental paid sick leave law. The new law will be effective Saturday February 19, 2022 (10 days after enactment). It is retroactive to January 1, 2022, and expires on September 30, 2022.

A Walk Down Memory Lane

As you may recall, California’s Supplemental Paid Sick Leave efforts began on September 9, 2020, when California enacted a state-wide COVID-19 supplemental paid sick leave law to fill gaps left by the federal Families First Coronavirus Response Act (“FFCRA”). (“2020 CA-SPSL”).

After the 2020 CA-SPSL expired on December 31, 2020, a new 2021 CA-SPSL went into effect on March 19, 2021. It was retroactive to January 1, 2021, and effective immediately as new Labor Code section 248.2. This law sunset on September 30, 2021.

Third Time’s the Charm?

Governor Gavin Newsom signed the new 2022 CA-SPSL on February 9, 2022, which was first published on February 2, 2022. The new law will be effective on Saturday, February 19, 2022 (10 days after its enactment). It contains similar provisions to its predecessors. Here are the highlights.

That First Step’s a Doozy: Now There’s Two Types of Leave

Under the third iteration of COVID-19 SPSL, two banks of leave will be available. One bank of up to 40 hours will be available if an employee or a family member tests positive. Employees will have another bank of up to 40 hours for all other covered reasons. These other covered reasons largely track the 2021 CA-SPSL, with a few expansions for caring for family members, which are underlined below:

  • Quarantine or Isolation. The covered employee is subject to a quarantine or isolation period related to COVID-19 as defined by an order or guidelines of the State Department of Public Health, the federal Centers for Disease Control and Prevention, or a local health officer who has jurisdiction over the workplace. If the covered employee is subject to more than one quarantine or isolation order or guideline, the covered employee shall be permitted to use COVID-19 supplemental paid sick leave for the minimum time period under the order or guidelines that provides for the longest such minimum period.
  • Advice from Health Care Provider. The covered employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
  • The covered employee is attending an appointment for themselves or a family member to receive a vaccine for protection against contracting COVID-19.
  • Vaccine Symptoms. The covered employee is experiencing symptoms, or caring for a family member experiencing symptoms, related to a COVID-19 vaccine that prevent the employee from being able to work or telework.
  • The covered employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
  • Caring for a Family Member. The covered employee is caring for a family member, who is subject to an order or guidelines or who has been advised to self-quarantine.
  • School Closure Due to COVID on Site. The covered employee is caring for a child whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19 on the premises.

Amount of Leave

Like the 2021 version, employees who are considered full time or work, on average, 40 hours a week, receive 40 hours of each type of leave, for a maximum of 80 hours of leave. Part time employees receive a pro-rated version based on their regular schedule. Employees with variable schedules receive leave based on their average hours worked over up to a six month lookback period (depending on length of employment).

Employers Can Request Some Documentation and Require Testing

In one bright spot for employers, employees may only take up to 24 hours per vaccine/booster injection unless the employee provides verification from a health care provider that the covered individual is continuing to experience symptoms related to the vaccine or booster.

When employees take leave under the specific tranche of leave available due to testing positive for COVID-19, employers may require documentation of the employee’s (or family member’s) positive test. If an employee refuses to provide documentation, the employer does not need to provide the leave. The nature of the documentation employers are able to require is unclear, and we await FAQs to provide some clarification.

In addition, if an employee tests positive, the employer may require the employee to submit to a diagnostic test on or after the fifth day and require documentation of results (but must make that test available at no cost to the employee).

I Sure As Heckfire Remember the Retroactive Payments

Like the 2021 SPSL law, employers are required to issue retroactive payments to employees who took leave for a covered reason since January 1, 2022, upon written or verbal request by an employee. The retroactive payment has to be paid “on or before the payday for the next full pay period after the oral or written request of the covered employee.”

Just Like Punxsutawney Phil, the Wage Statement Requirement Is Reincarnated

Instead of providing the available balance on wage statements (or written notices issued on pay day) as previous versions of the SPSL provisions required, employers now only need to list the amount of leave that has been used. If an employee has not yet used any leave, their statement must list “zero.”

Rate of Pay Partially Aligns With Regular Paid Sick Leave

One new provision alleviates some of the administrative burden of determining the correct rate of pay, at least where the employer is using workweek calculation method. Under 2022 CA-SPSL, the rate of pay is the same as California’s regular paid sick leave under Labor Code Section 246, if using the workweek method. Leave is to be paid at the regular rate during the pay period taken, meaning employers must include hourly wages, commissions, piece rate, or other wage payments during the workweek into their calculations (or, for exempt employees, their typical pay).

If using the 90-day lookback method, the rate of pay is not the same as that in Labor Code Section 246 for regular paid sick leave. It is calculated by dividing the employee’s total wages, not including overtime premium pay, by the employee’s total non-overtime hours worked in the full pay periods occurring within the prior 90 days of employment, as opposed to total hours worked (a.k.a. the Alvarado method). See our prior blog here for details on how to do these types of regular rate calculations.

The $511/day cap remains under either calculation method.

No Cal/OSHA Earnings Continuation Relief

Unlike the 2021 CA-SPSL, an employer cannot require covered employees to first exhaust their COVID-19 supplemental paid sick leave before satisfying any requirement to provide earnings continuation under the Cal/OSHA ETS, which we blogged about here. Employers cannot require any other type of leave to be used instead of, or before, 2022 CA-SPSL.

Credit Where Credit Is Due

Employers that have provided COVID-19 related leave for reasons covered by the new law in amounts equal to or greater than what the law requires can take credit for previously provided leave since January 1, 2022.

Notice Requirement

A new model poster has been provided by the DLSE here (and in Spanish here). This should be posted in the workplace and must be emailed to employees who do not frequent a workplace.

Déjà vu: Small Business Carve Out

Like its predecessors, 2022 CA-SPSL will not apply to businesses with 25 or fewer employees.

(Good) Tax News?

Last year, businesses could be reimbursed for supplemental paid COVID-19 leave with a now-expired federal tax credit. We expect that businesses will have to absorb the cost, but that there will be some relief through various tax credits and additional funding for more small business grants.

Workplace Solutions

As the landscape of federal, state, and local COVID-related leave laws continues to change, employers must continue to modify policies and practices to ensure compliance. For more information on COVID-19 issues, please contact your favorite Seyfarth attorney.

Seyfarth Synopsis: As of January 14, 2022, California employers must ensure that their COVID-19 health and safety protocols are compliant with Cal/OSHA’s Latest COVID-19 Prevention Emergency Temporary Standards. The U.S. Supreme Court’s recent ruling on the nationwide Federal OSHA ETS vaccine mandate does not impact these separate California-specific requirements, which employers must still comply with here.

Once The Rage, SCOTUS Voted To Stay Enforcement Of Federal OSHA’s ETS

As we reported, on January 13, 2022, the U.S. Supreme Court blocked Federal OSHA’s mandate slated to apply to businesses with 100 or more employees nationally. The federal mandate requires employees to either be fully vaccinated or to wear masks and take COVID-19 tests weekly, among other requirements. As you may recall, immediately after the mandate was issued, many businesses, local governments, and private interest groups fought to put the mandate on hold.

Ultimately, SCOTUS ruled that OSHA had exceeded its power because regulating overall public health was outside the agency’s authority to regulate workplace safety, and has sent the mandate challenges back to the Sixth Circuit for further litigation on the merits. Despite this ruling, U.S. Secretary of Labor Marty Walsh indicated that “OSHA will do everything in its existing authority to hold businesses accountable for protecting workers,” regardless of the litigation.

But, just because the nationwide federal OSHA mandate seems to be anything but everlasting, the beat goes on in California where the Cal/OSHA ETS is in full swing.

Cal/OSHA’s ETS Keeps Pounding A Rhythm To The Brain

SCOTUS’ recent decision regarding the nationwide OSHA mandate does not impact Cal/OSHA’s enforcement of its own COVID-19 Prevention Emergency Temporary Standards (“ETS”)  ETS, and California employers are required to be in compliance with the newly revised ETS as of January 14, 2022.

As we reported, on December 16, 2021, the Cal/OSHA Standards Board voted to readopt the ETS with changes that took effect on January 14, 2022, and will remain in place through April 14, 2022. So, you need to make sure that your company is updating its COVID-19 Prevention Plan in line with the new guidelines, as appropriate. Some of the highlights are:

  • The definition of a “COVID-19 test” excludes tests which are both self-administered and self-read, so employers may not rely on the results of an employee’s at-home rapid test to comply with the testing requirements of the ETS.
  • “Fully vaccinated” for purposes of the ETS, includes mixing and matching of vaccines so long as the vaccines are FDA approved or listed for emergency use by the WHO (e.g. two doses of a Moderna-NIAID vaccine, and one dose of a Pfizer-BioNTech booster).
  • Testing must be provided to any workplace close contact employees, regardless of vaccination status, during paid working time and at no cost to employees.
  • Outbreak testing can’t exclude fully vaccinated employees.
  • Updated isolation and quarantine guidelines related to CDPH and CDC updates, which vary depending on vaccination status and test results, available in detail here.
  • And, in clarifying FAQs, Cal/OSHA stated that it is not banning cloth face coverings, nor do they “need to completely block out light” (as stated in the ETS itself), but rather they just need to be tightly woven fabric or non-woven material.

As a reminder of some other key provisions carried over from prior versions of the ETS, you also want to make sure your company is:

  • Documenting employee vaccination status, by checking proof of vaccination, for if/when it may be able to allow fully vaccinated individuals to remove masks indoors.
  • Providing adequate face coverings (including respirators or N95s, where required) for employees who are either unvaccinated or upon request.
  • Contact tracing cases at work, and making sure employees and others in the workplace are appropriately quarantined and/or maintaining physical distancing requirements if they have been exposed to COVID-19.
  • Providing free COVID-19 testing during paid working time to all symptomatic employees who are not fully vaccinated, regardless of work-related exposure.
  • Maintaining COVID-19 safety plans and training for employees.

In addition to complying with the ETS, California employers must follow all public health orders on COVID-19 (including local public health department orders). The most recent order from the California Department of Public Health can be found here, which importantly includes an indoor mask mandate for all employees through February 15, 2022.

La De Da—The Beat Is Different for Healthcare Workers

Though SCOTUS blocked enforcement of the Federal OSHA ETS, separately in a 5-to-4 decision, the mandate for the Centers for Medicare & Medicaid Services was allowed to take effect. As Seyfarth recently reported, this mandate requires vaccines for health care workers at hospitals and other medical facilities that participate in certain Federal programs. California is one of the many states expected to continue under the timeframes and parameters identified in the December 28, 2021, CMS Guidance for the Interim Final Rule, which requires healthcare workers to be fully vaccinated by February 28, 2022.

And, as a reminder, California’s Department of Public Health issued its own vaccine requirements for health care workers back in August 2021, and updated it on December 22, 2021, to address boosters, as described in detail here.

The CDPH vaccine requirement applies to workers who provide services or work in various types of healthcare facilities such as general acute care hospitals, skilled nursing facilities, and clinics and doctor’s offices. The CMS mandate, on the other hand, does not require boosters, and applies to health care workers at facilities participating in the Medicare or Medicaid programs.

In many cases, facilities in California will be covered by both the CDPH vaccine requirements and the CMS mandate, with some exceptions. For example, and perhaps most notably, many doctor’s offices will not be covered by the CMS mandate unless they are part of a larger hospital system, though they will be covered by the CDPH mandate.

Workplace Solutions

California employers need to ensure immediate compliance with Cal/OSHA’s ETS or risk potential citations. This includes substantial monetary penalties, sometimes five or six figures. Cal/OSHA recently posted new fact sheets (here and here) and updated its FAQ’s on the ETS for guidance as well.

Remain on the lookout for additional alerts as the landscape continues to change. Consult your Seyfarth attorney, including any member of Seyfarth’s Workplace Safety Team or Health Care Team, to ensure that your business is complying with the ever-changing COVID-19 rules and regulations.

Edited by Elizabeth Levy and Coby Turner

 

We’re sure the rush of changes happening at year end, and prepping for the holidays over the next few weeks have got you thinking: what’s on my wish list? If you could ask CalPecs Santa for anything, what would it be?

Your CalPecs editors are ready to ring in the New Year with an assortment of articles as exciting as finding a bell from Santa’s sleigh under the tree, but we’d like to know what YOU would like to see. If you have a hot topic of interest you’ve been mulling over with your cider, or a nagging issue getting more attention than Rudolph’s nose on a foggy night, please send it our way! We’ll wrap your thoughts in a bow and address them in our posts for 2022.

Please help us bring joy to the world, and contact us here with your holiday wish!