Category Archives: Uncategorized

I updated the leaves of absence chart I refer to when thinking about potential time off for employees. Feel free to let me know if you see an issue! This is an “issue-spotting” chart – each of these leaves has special rules . . . .

This new version includes adding “designated person” to the CFRA and PSL and the new bereavement leave benefit. “Enjoy!”

A little late posting here, but if it helps avoid one issue for you then it is worth it!

The inevitable march of time . . . and new requirements for California employers. 2023 is here! Give a cheer!  Please do not hesitate to contact us with questions or requests for assistance. 

COMPENSATION

Pay Transparency. 

Employers of 15 or more employees must affirmatively include the pay scale for a position in any job posting. If an employer uses a vendor/third party to recruit or post, the employer must ensure it includes the necessary information. If a current employee asks for the pay scale for the position they currently hold, the employer must provide it. The pay scale means the salary or hourly wage that the employer reasonably expects to pay for the position. SB 1162.

This new law also expands employers’ recordkeeping obligations. All employers must keep records of the job title and wage rate history for each employee for the duration of the employment, plus three years after separation. SB 1162.

Pay Data Reporting.

Employers of 100 or more employees, and/or 100 or more contracted through labor contracting agencies, must submit annual pay data to the California Civil Rights Department by May 10, 2023 (and the “second Wednesday of May” for years after 2023).

This is similar to, but not exactly a copy, of the reporting requirements to the federal government through an EEO-1. The data report must include information about pay, race, ethnicity and gender. For workers supplied through a labor contractor, the reporting rule generally covers only those who perform work within the employer’s usual course of business. SB 1162.

Pay at least minimum wage to all employees.

As of January 1, 2023, all California employers, regardless of size, must pay their employees at least a minimum wage of $15.50 per hour.

The minimum salary that must be paid to exempt employees in California is a function of the minimum wage. Generally, this means that workers paid under the Administrative or Executive exemption must be paid at least two times the appropriate minimum wage based on a 40-hour workweek -$64,480.

Many California cities have their own minimum wages that employers must pay nonexempt employees for work within city limits. This does not alter the minimum annual salary of $64,480. Some Northern California cities with higher rates include: Belmont ($16.75); Burlingame ($16.47); Cupertino ($17.20); Daly City ($16.07); East Palo Alto ($16.50); El Cerrito ($17.35); Foster City ($16.50); Half Moon Bay ($16.45); Hayward ($16.34 if 26+ employees; $15.50 if 1-25 employees); Los Altos ($17.20); Menlo Park ($16.20); Mountain View ($18.15); Novato ($15.53-$16.32 depending on size of employer); Oakland ($15.97); Palo Alto ($17.06); Redwood City ($17.00); Richmond ($16.17); San Carlos ($16.32); South San Francisco ($16.70); San Jose ($17.00); San Mateo ($16.75); Santa Clara ($17.20); and Sunnyvale ($17.95).

 Review your Wage and Hour Compliance.

As a reminder, it is imperative that you review your timekeeping procedures. Nonexempt employees’ meal breaks must be no less than 30 minutes. Rounding is not acceptable. And the meal period must be taken before the fifth hour of work. 

Also, you must include all forms of compensation when calculating the regular rate of pay. This means that when an employee is entitled to a meal period premium, rest break premium, or overtime pay, you must consider all forms of compensation – bonuses, etc., – to determine the rate of pay. You cannot simply use the base hourly rate.

Pay workers as employees, unless that worker can really fit into California’s independent contractor definition.

California remains serious that it wants businesses to comply with its independent contractor rules (as set forth in Dynamex, AB 5 and AB 2557). If you have workers performing services for you and are not paying that worker as a W2 employee, you must carefully review that relationship.

TIME OFF

Bereavement Leave.

Employers with 5 or more employees must provide up to 5 days of unpaid bereavement leave for an employee within three months of the death of a family member.  This is an amendment to the CFRA. If you already offer, say, paid leave of three days, you must offer the additional two unpaid days. AB 1949.

Leave to Care for a “Designated Person.”

Both the California Family Rights Act (CFRA) and California’s Paid Sick Leave Law (“Health Workplaces Health Families Act” (HWHFA)) are expanded in 2023 to include a “designated person.” At the time an employee requests unpaid (CFRA) or paid (HWHFA) leave, they may identify a designated person that they will be caring for. AB 1041.

Protected Time Off During an Emergency.

This new law prohibits retaliation by an employer when an employee refuses to report to work or leaves work during an emergency condition.  This new law also prohibits an employer from preventing an employee from accessing a mobile device during an emergency condition. An emergency condition is where there is disaster or extreme peril to the safety of persons or property at the workplace or worksite caused by natural forces or a criminal act. It also includes conditions when there is an order to evacuate a workplace, a worksite, a worker’s home, or the school of a worker’s child due to natural disaster or a criminal act. (A health pandemic is excluded from the definition of an emergency condition). There are exceptions for certain types of employees (first responders, jail employees, health care workers, etc.). SB 1044.

COVID-19

Cal/OSHA to Implement Non-Emergency COVID-19 Prevention Regulations.

On December 15, 2022, Cal/OSHA opted COVID-19 Prevention Non-Emergency Regulations (NER) to replace the Emergency Temporary Standards (ETS). Of note, the ETS remain in effect while Cal/OSHA works to review the proposed NER. This should be completed by mid-January. The NER will remain in effect for two years. 

The NER will continue to require employers to maintain a safe and healthy workplace for employees. A COVID-19 IIPP must be in effect; this can be in the employer’s IIPP or a separate document. Testing must be available, as well as adequate ventilation. When the new regulation becomes effective, Cal/OSHA will publish an updated set of FAQs and model program.

Workers’ Compensation.

California again extended the “rebuttable presumption” that an employee’s illness resulting from COVID-19 was sustained in the course of employment for purposes of workers compensation benefits.

Exposure Notifications.

California amended Labor Code §6409.6 regarding the duties of an employer when notified of potential exposure to COVID-19 and extends its provisions until January 1, 2024. Employers will now have the option to post a notice of potential COVID-19 exposure at the worksite and on existing employee portals instead of providing written notice. AB 2693.

PRIVACY

GPS Surveillance of Fleet Vehicles.

Generally, an employer must notify employees that GPS monitoring will occur for work vehicles and must allow an employee to disable the technology, outside of work hours. AB 984.

Data Privacy. 

Additional provisions of the California Privacy Rights Act of 2020 (“CPRA”) take effect. The CPRA substantially expands the privacy and information security obligations of most employers doing business in California, requiring significant changes to existing policies, procedures, and practices for handling individuals’ personal information.

“CATCH-ALL”

Relocation of Call Centers.

CalWARN Act is specifically expanded to include where employer is going to move a call center out of state. Call centers must provide notice of mass layoff, relocation or termination pursuant to the Act.  AB 1601.

Human Trafficking Liability.

Hotel employers are now liable for human trafficking penalties if a supervisory employee knew of or acted with reckless disregard of sex trafficking activity.  AB 1788.

Reproductive Health. 

California prohibits a person from being subject to civil or criminal liability based on their actions or omissions with respect to their pregnancy or actual, potential, or alleged pregnancy outcome or based on their actions to aid or assist a woman or pregnant person who is exercising their reproductive rights. AB 2223.

“Card Check” for Agricultural Employees.

Agricultural Labor Relations Voting Choice Act gives agricultural workers the option to vote by mail in union representation elections that were previously required to be held in person.  AB 2183.

•  •  •

This is just a summary of some of the changes to California’s employment law rules. Please do not hesitate to contact us with questions!

My enthusiasm for all things, including laws related to COVID and wage and hour, is a little higher now. A little!

A belated post about a new law signed February 9, 2022 by Gov. Newsom. I admit to my own COVID/World Events-based fatigue! (Oh, you don’t have any?!?!? Gee, I’m real happy for you! Ha ha.

Confusing date part: The law is set forth in new Labor Code Section 248.6 (“2022 CPSL”). It is retroactive to January 1, 2022. But, an employer’s obligation to provide 2022 COVID-19 supplemental California paid sick leave (CPSL) did not begin until February 19. 

And . . . Covered Employers (see below) are to provide 2022 CPSL through September 30, 2022.  If an employee is using 2022 CPSL on September 30, however, and the absence would continue without interruption past that date, the employee gets to continue using available CPSL for that absence. Got it? 

This law is kind of similar, and mostly not, to the prior CPSL that you navigated last year.  

Covered Employers, Employees and Family Members.  2022 CPSL applies to employers with 26 or more employees (and some public entities). It does not apply to employers with 25 or fewer employees.

The law covers all employees. Additionally, it allows employees to use leave to care for family members. Family member is defined to include a child, grandchild, grandparent, parent, sibling, or spouse.

Reasons Employees Can Use Leave. Employees who are unable to work or telework can use 2022 CPSL L for the following reasons – a list you’ll see is expanded from the 2021 reasons: 

• Employee is subject to a quarantine or isolation period related to COVID-19 as defined by federal, state or local orders or guidance.
• Employee is advised by a health care provider to self-quarantine or isolate due to concerns related to COVID-19.
• Employee or family member is attending an appointment to receive a COVID-19 vaccine or booster.
• Employee or family member is experiencing symptoms related to a COVID-19 vaccine or booster that prevent the employee from being able to work or telework.
• Employee is experiencing COVID-19 symptoms and seeking a medical diagnosis.
• Employee is caring for a family member who is subject to a quarantine or isolation order or guidance or who has been advised to self-quarantine or isolate by a health care provider due to concerns related to COVID-19.
• 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.
• Employee tests positive or is caring for a family member who tests positive for COVID-19.

Interaction with CalOSHA’s ETS and “Exclusion Pay.”  If CalOSHA’s COVID-19 requires an employer to maintain an employee’s earnings when an employee is excluded from the workplace due to COVID-19 exposure, employers cannot require an employee to first exhaust CPSL.

Amount of Paid Time Off for Employee. The maximum potential amount of CPSL an employee can receive is 80 hours for full-time employees. But this is really two separate 40-hour rules.

First “Bank of 40-Hours”.  If the employee tests positive for or is caring for a family member who tests positive for COVID-19, they draw from one “up to 40-hour” bank of paid time off.

Second “Bank of 40-Hours.”  This paid time off is available only for other covered reasons (quarantine or isolation, vaccine appointments or recovery, experiencing COVID symptoms and seeking medical diagnosis, closure of school or place of care for reasons related to COVID-19 on the premises).

For time off under the Second Bank, the time off for a COVID-19 vaccine or booster shot can be limited by the employer to three days or 24 hours. This time includes time spent attending an appointment and/or for COVID-19 vaccine or booster shot-related symptoms (for each vaccine/booster).  If a health care provider verifies the individual continues to experience symptoms related to the vaccine/booster, more than three days or 24 hours of time off may be available.

Employee Obligations.  The employee (only!) determines how many 2022 CPSL hours they need to use. Employees get to choose whether they will use 2022 CPSL or some other paid or unpaid leave benefit their employer provides, or the law requires, to cover an absence.

Employees can use 2022 CPSL immediately on or after Feb. 19 if they make an verbal or written request to use leave.

Also, please note: when an employee or family member tests positive for COVID-19, employers can require employees to take another diagnostic test on or after the fifth day after the first test and provide documentation of the results. This test must be at no cost to the employee.

Amount of the Benefit. The 2022 CPSL pay rate calculations kind of mirror those required under the “regular” California Paid Sick Leave rules.  Generally, employers include total wages, excluding overtime premium pay – as they would under the “regular rule” – but for 2022 CPSL they divide by total non-overtime hours worked in the full pay periods occurring within the prior 90 days of employment. Under 2022 CPSL, the only reason employers would divide by all hours worked is when the employer pays the employee “by piece rate, commission or other method that uses all hours to determine the regular rate of pay.”

Employers need not pay more than $511 for each day an employee uses CPSL, or more than $5,110 overall. Employees who max out because of the pay caps can use other available paid leave they have so they are fully compensated during the absence.

Notice, Posting and Paystub Requirements.  You should post this notice that the Labor Commissioner published.

If you don’t have a “workplace,” you can send this out via email.

Employers must include information concerning 2022 CPSL on paystubs or other written notices employees receive on payday.  

However, unlike the 2021 law where employers only had to display CPSL “available,” employers only must report 2022 CPSL hours an employee “used” (reporting “zero hours” until an employee uses CPSL). The law does not clarify if employers must break this information out (for the two banks of available time off) . . . so I suggest you do so!

Offset.  The amount of paid leave employees already received in 2022 before the law takes effect might qualify as an offset that satisfies an employer’s 2022 CPSL obligations all or in part. If an employer pays an employee another benefit for time off taken after January 1, 2022 that is for a reason covered by 2022 CPSL, an employer may be able to count those hours toward the amount required by 2022 CPSL.

That is actually a pretty confusing exception/offset because to offset amounts owed under the 2022 CPSL, these amounts be a supplemental benefit. This means employers cannot count paid sick leave employees have used under California’s Healthy Workplaces, Healthy Families Act (HWHFA), the pre-COVID-19 paid-sick-and-safe-time law, or 2021 CPSL toward their 2022 CPSL obligation.

*If you paid any benefits related to COVID after January 1, 2022, there are several complicated provisions of the law, so you should review the actual code section and, if you wish, consult with counsel!

CalOSHA updated its Emergency Temporary Standards and the associated FAQs earlier this week:

Q.4: How does CDPH’s February 28, 2022 Guidance for the Use of Face Masks impact the ETS requirements?

A: Executive Order N-5-22 suspends section 3205(c)(6)(A) of the ETS, which required that unvaccinated workers wear face coverings in all indoor workplaces and all vehicles. This requirement will no longer be enforced. However, other face covering requirements within the ETS remain in place, including provisions requiring face coverings in outbreaks and in employer-provided transportation. Also still in place is section 3205(c)(6)(B), which requires that employers provide face coverings and ensure they are worn when required by orders from the CDPH. In addition, employees can request face coverings from the employer at no cost to the employee and can wear them at work, regardless of vaccination status, without fear of retaliation, as specified in section 3205(c)(5)(J).

In addition, the February 28, 2022 masking order from the CDPH requires that all workers in the following sectors wear face coverings indoors:

• Indoors in K-12 schools, childcare (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

Gee, thanks CalOSHA! So . . . if an employer requires masks inside for the unvaccinated, there will be push-back. And if an individual contracts COVID . . . welp, the employer can pay the California Paid Sick Leave! Rassafrassa.

(Employers can still choose to require masks for unvaccinated, or all . . . FYI).

Santa Clara County has led the way (I think) when it comes to trying to minimize the effects of COVID-19 on its residents’ health. Earlier this week, the County’s Public Health Officer issued a new order and a ton of explanatory documents to guide employers (and residents) as the State and County and Country begin to “open up.”

There is a ton of information at the County Public Health site – https://covid19.sccgov.org/public-health-order-faq – with lots of links. Pretend you are linking through theories about Mare of Easttown . . . since it will take about that long to go through it all.

Here are some highlights:

• At the County level there are not longer requirements for capacity restrictions and to maximize telework.
• Employers (you!) must get the vaccination status of all employees who work in the County (and are encouraged to collect it for workers in other counties). Employers must have this information by June 1, 2021. Employers can ask fro proof of vaccination (the card) or ask employees to complete the Self-Certification form.
• All unvaccinated employees (or those that “decline to state” and are presumed to be unvaccinated) must update their status every two weeks.
• Indoor mask requirements remain in effect.
• It is likely best to keep the break rooms closed (or at least keep the tables and chairs out) – employees are still discouraged from eating indoors together.

It is not clear if other local or state governments will follow Santa Clara’s lead.

Keep in mind -all the Cal-OSHA requirements for a safe work environment and the California Paid Sick Leave for COVID and the voluntary FFCRA provisions, etc. that I have either written about or linked to other lawyers’ writings are still in effect.

Good luck! Stay safe!

As an update to my article, below, about the new California COVID Paid Sick Leave. . . here is some more information about how it interacts with the “revived” FFCRA.  As you may recall, the FFCRA expired at the end of 2020. Then, Employers could offer it through March 31, 2021 and still get the payroll tax credit. Now the FFCRA has been modified and extended to September 30, 2021.

Right off the bat, you should note that the payroll tax credits continue. This is important considering California’s new Paid Sick Leave requirement that I discuss in my prior post.  I suggest you take advantage of this opportunity! California’s COVID Paid Sick Leave is a directive from California to employers to provide paid sick leave. The employer must fund this benefit without assistance from the state. The text of the new California law does not prohibit an employer from using the FFCRA to help offset these costs. If the reason for the sick leave qualified under the definitions in the FFCRA and the new California COVID Paid Sick Leave, the employer may designate it as both and take the tax credit.   

In addition to this welcome assistance, the revived FFCRA has expanded the reasons employees can take FFCRA leave (effective April 1, 2021): 

1.  The employee is receiving a COVID-19 vaccine.

2.  The employee is recovering from any injury, disability, illness, or condition related to the COVID-19 vaccine.

3.  The employee is seeking or awaiting the results of a COVID-19 test when the employee has been exposed to COVID-19 or the employer has requested the test.

In fact, these new reasons apply to the paid sick leave component of the FFCRA and the FFCRA’s EFMLA benefit.

Of note, if an employee took FFCRA paid sick leave already, their bank of time is renewed as of April 1, 2021.  That means, the employee has a new bank of 80 hours of qualifying paid sick leave (and paid sick leave for which the employer can get the payroll tax credit). 

There was no renewal of the EFMLA time – if exhausted, the employee is not entitled to more. 

On a related note, California’s Labor Commissioner is a total go-getter and already published the model notice for the California rule. You can access it here.

(You are all spared the original version of this post, that compared the FFCRA to The Vision and California’s legislature to Wanda Maximoff and the Labor Commissioner to Agent Woo.  I could not get Monica Rambeau and Dr. Lewis in it, so I bailed.  BUT if you want to talk about WandaVision, I am THERE. . . )

California employers with more than 25 employees have a new paid sick leave requirement. The new law goes into effect March 29, 2021 but will apply retroactively back to January 1, 2021. 

SB 95 creates new Labor Code sections 248.2 and 248.3. Under the new laws, “covered employees” are entitled to up to 80 new hours of COVID-19 supplemental paid sick leave.  While this was originally seen as a continuation of the SPSL that was a tag-along to the FFCRA and expired December 31, 2020 (Nice acronyms!), it is a completely different, expanded paid sick leave program. 

All “covered employers” must provide the new California COVID-19 supplemental paid sick leave (SPSL). Although the 2020 version of the SPSL applied only to employers with 500 or more employees. This new law (I will call it 2021 SPSL) defines “covered employer” as any business “with more than 25 employees.”

All “covered employees” are entitled to take 2021 SPSL. A “covered employee” is any employee “who [is] unable to work or telework” for a covered employer for one of the reasons listed in the new law.

The law also adds new benefits for “providers” who provide in-home supportive services as defined under the California Welfare and Institutions Code and who provide “authorized in-home supportive services … to an eligible recipient.”

Covered employees may take the new 2021 SPSL if they are unable to work or telework, and providers may take 2021 SPSL if they are unable to work due to any of the following reasons.

1. The covered employee or provider is subject to a quarantine or isolation period related to COVID-19.
2. A health care provider has advised the covered employee or provider to self-quarantine because of COVID-19–related concerns.
3. The covered employee or provider is attending an appointment to receive a COVID-19 vaccine.
4. The covered employee or provider is experiencing symptoms related to a COVID-19 vaccine that prevents the employee from being able to work or telework.
5. The covered employee or provider is experiencing COVID-19 symptoms and is seeking a medical diagnosis.
6. The covered employee is caring for a family member who is subject to a quarantine or isolation order or who a health care provider has advised to self-quarantine. Under the 2021 SPSL, family members include the employee’s spouse, registered domestic partner, parent (including parents-in-law), child (regardless of age or dependency), grandparent, grandchild, and sibling.
7. The covered employee or provider 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.

Generally, full time employees are entitled to 80 hours of 2021 SPSL, while part-time employees are entitled to a pro rata amount based on the hours worked over a two-week period. The amount of sick leave under this program is capped at $511 per day and $5,110 total for each employee.

An employee is “full time” if the employer considers the worker to be full time or the employee is scheduled to work, or worked, an average of 40 hours per week in the two weeks before the employee takes the time off. 

The 80 2021 SPSL hours are in addition to the paid sick leave that an employer must provide and to which the covered employee or provider already is entitled under the California Paid Sick Leave rules.

The 2021 SPSL is law is retroactive to January 1, 2021. This means that an employee can use COVID-19 SPSL for any absence since January 1, 2021, that falls within a covered reason. The employer must provide this retroactive payment once the employee makes a verbal or written request.  The payment is to be by the next full pay period. And the wage statement must show a line item for the payment of the 2021 SPSL (separate from any other PTO or PSL). 

An employer may not force an employee to use any other form of paid or unpaid leave or time off, including company-provided sick leave, vacation, or paid time off (PTO), before using 2021 SPSL. The employee gets to choose the amount of 2021 SPSL employees to choose the number of COVID-19 SPSL hours to use, and when, up to the number of COVID-19 SPSL hours for which the employees are eligible.  However, if 2021 SPSL is available, the Cal/OSHA exclusion pay would not be triggered.

The employer must post a notice of this new benefit.  The Labor Commissioner is supposed to make a model notice you can use – and if I catch it, I will post it on the blog! And the Labor Commissioner will enforce this new 2021 SPSL program. 

The law will expire September 30, 2021.

Happy 2021! I am posting an updated chart of California Leaves of Absences. As you’ll note on the final page, this does not incorporate COVID-19 related time off and wage replacement laws under FFCRA, Cal/OSHA, or California sick leave programs. I hope to post a separate document with those updated particulars soon-ish.

(Of course, if you see a “need for further revision” AKA a mistake, feel free to let me know! Follows my theme of “we’re all in this together!”)

Wow! What a way to start the New Year!!!!!

This didn’t make it into my Employment Law Update (due to operator error), but please note that beginning January 1, 2021, California’s Paid Family Leave program will expand by adding “Military Assist.” PFL Military Assist benefits will be available to eligible Californians who need time off work to participate in a qualifying event because of the military deployment of their spouse, registered domestic partner, parent, or child to a foreign country.

For more information, here is the EDD’s PFL website that is focused on applications made after January 1.