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In a split 2-1 decision, the Ninth Circuit Court of Appeals reversed the district court’s order preliminarily enjoining enforcement of California’s Assembly Bill (AB) 5 in California Trucking Association et al. v. Bonta (CTA). If this ruling is not appealed, AB 5, which is chaptered in the California Labor Code under 2750.3, will no longer be enjoined from applying to companies in the trucking industry.

In 2019, the California legislature enacted AB 5 to codify the California Supreme Court’s decision in Dynamex West Operations, Inc. v. Superior Court (2018). In Dynamex, the Court judicially adopted the “ABC test” for employers to pass before classifying a worker as an independent contractor. Prior to the Dynamex ruling, courts applied the multi-factor Borello balancing test to determine the status of a worker.

Over 30 states now apply the ABC test. Subject to some statutory exemptions, in California, the law provides that a worker is presumed to be an employee unless: (a) the worker is free from control and direction of the hiring entity under both in practice and under contract; and (b) the worker performs work outside of the usual course of the hiring entity’s business; and (c) the worker is customarily engaged in an independently established trade, occupation or business of the same nature of the work performed.Continue Reading Ninth Circuit reverses preliminary injunction: California’s independent contractor law applies to motor carriers

UPDATE on May 20, 2021: Since this article was published, Cal/OSHA has delayed the vote on the new proposed Emergency Temporary Standards. Please read details on the delayed vote on the Reed Smith EHS Law Insights Blog.

As vaccination rates increase in California, the California Department of Occupational Safety and Health (Cal-OSHA) has released a draft of a new proposed COVID-19 emergency regulation. The California Occupational Safety and Health Standards Board will vote on whether to send the proposed regulation to the Office of Administrative Law (OAL) on May 20th. After it is received, the OAL is only required to allow five calendar days for submission of comments and 10 calendar days for review before filing with the Secretary of State. Given this timeline, it is likely that the new regulations will become effective in early June.

The new COVID-19 emergency regulations loosen a number of the prior requirements for fully vaccinated workers. The new COVID-19 emergency regulations, however, also add a number of new compliance requirements for employers. In that regard, the new proposed regulation contains many important changes to how face coverings and N-95 masks must be used, testing and exposure requirements, and the prior exclusion and wage replacement rules. The key changes in these areas are briefly summarized below:
Continue Reading Cal-OSHA released proposed revisions to the COVID-19 prevention order

On March 19, 2021, Governor Newsom signed Senate Bill 95 (SB 95), which creates, in part, new Labor Code Section 248.2.[1] As a reminder, Governor Newsom previously signed AB 1867, which added Labor Code sections 248 and 248.1 to provide COVID-19 Supplemental Paid Sick Leave to food sector workers and employees who worked for employers with 500 plus employees nationwide, respectively. Those requirements expired on December 30, 2020.

Section 248.2 provides covered employees with up to 80 new hours of COVID-19 supplemental paid sick leave (SPSL). SPSL is sick leave in addition to paid sick leave employers are already required to provide under the Health Workplaces, Healthy Families Act. This new requirement goes into effect on March 29, 2021 (although, as discussed below, leave provided on or after January 1, 2021 may be applied retroactively) and expires on September 30, 2021, unless otherwise extended. The Labor Commissioner has already published FAQs for Labor Code section 248.2 here.Continue Reading California requires new COVID-19 Supplemental Paid Sick Leave in 2021

Recently the California Department of Fair Employment and Housing (DFEH) released guidance stating that employers generally may require their employees to receive a Food and Drug Administration approved vaccination against COVID-19. Under California’s Fair Employment and Housing Act (FEHA), an employer may implement a mandatory vaccination policy so long as the employer:

  1. Does not discriminate against or harass employees or job applicants on the basis of a protected characteristic;
  2. Provides reasonable accommodations related to disability or sincerely-held religious beliefs or practices; and
  3. Does not retaliate against anyone for engaging in protected activity (such as requesting a reasonable accommodation).

Continue Reading The California Department of Fair Employment and Housing blesses employers’ use of mandatory vaccination policies

On February 25, 2021, the California Supreme Court decided Donohue v. AMN Services, LLC (Donohue).  In that case, the court held that (1) employers cannot round time in the meal period context and (2) time records showing noncompliant meal periods raise a rebuttable presumption of a meal period violation.  Accordingly, the court’s decision has significant implications for employers who rely on time keeping systems that round time during employee meal breaks.

California’s meal period laws are governed primarily by California Labor Code section 512 and the Industrial Welfare Commission Wage Order No. 4.  Pursuant to these regulations, an employee is entitled to a 30 minute meal break no later than the end of the fifth hour of work and another 30 minute meal break no later than the end of the tenth hour of work.  An employer must provide the opportunity for a compliant meal period, but need not police it.  If an employee voluntarily chooses not to take a meal break, then there is no meal period violation.  However, if an employer fails to provide a compliant meal break and an employee does not voluntarily waive it, then the employer must provide that employee a premium pay, or one additional hour of pay at the employee’s regular rate of compensation for each workday a meal period is not provided.  To avoid such penalties, an employer must provide its employees with complete and timely meal breaks whenever required by law.
Continue Reading California Supreme Court rejects rounding time for meal breaks

The Families First Coronavirus Response Act (FFCRA), requiring employers with 50-500 employees[1] to provide supplemental paid sick leave and paid family leave to their employees, and California’s statewide COVID-19 supplemental paid sick leave requirement expired on December 31, 2020.  While employers may voluntarily continue to provide FFCRA and receive tax credits through March 31, 2021, the FFCRA mandates are now voluntary for employers to continue absent federal legislative action.  Despite this, numerous California counties and cities have extended their COVID-19 paid sick leave ordinances and imposed additional requirements for employers.  To date, these include: Los Angeles (City and County), City of Long Beach, Sacramento (City and County), San Francisco, City of Oakland, San Mateo County, Sonoma County, Santa Rosa, and San Jose.

City of Los Angeles. Los Angeles Mayor Eric Garcetti recently revised an order requiring an employer to provide COVID-19 Supplemental Paid Sick Leave (SPSL) if it has 500 or more employees in the city or 2,000 or more employees nationally. The February 10, 2021 revised order expanded coverage and provides SPSL benefits to employees employed with the same employer for 60 days, and expanded coverage to employees hired on or after March 5, 2020. Most importantly, the revised order mandates that employers calculate SPSL based on the employee’s respective two-week average pay over the last 60 days of employment. The order remains in effect until two calendar weeks after the expiration of the County of Los Angeles local emergency period.
Continue Reading Brief refresher for California employers: 2021 updates to local COVID-19 paid sick leave requirements

On September 17, 2020, Governor Gavin Newsom signed Senate Bill 1383 (SB-1383), which significantly expands employee eligibility for family and medical leave under the California Family Rights Act (CFRA).

The law, which will go into effect January 1, 2021, reduces the number of employees required for an employer to be covered under the CFRA and also expands the reasons why employees may take these leaves.

Currently, private employers with 50 or more employees working in a 75-mile radius are required to provide employees with leave under the CFRA, while private employers with 20 or more employees are required to provide limited leave time for baby bonding pursuant to the New Parent Leave Act (NPLA).

SB 1383 expands the leave entitlement to cover smaller employers, requiring employers with five or more employees to provide eligible employees with up to 12 weeks of unpaid leave within a 12-month period for a qualifying reason. Qualifying reasons include:

  • Leave for the birth of a child of the employee or the placement of a child with an employee in connection with the adoption or foster care of the child by the employee;
  • Leave to care for a child, parent, grandparent, grandchild, sibling, spouse, or domestic partner who has a serious health condition;
  • Leave because of an employee’s own serious health condition that makes the employee unable to perform the functions of the position of that employee, except for leave taken for disability on account of pregnancy, childbirth, or related medical conditions;
  • Leave because of a qualifying exigency related to the covered active duty or call to covered active duty of an employee’s spouse, domestic partner, child, or parent in the Armed Forces of the United States;

This list of qualifying reasons further expands leave entitlement beyond what employers are required to provide under the current CFRA and NPLA. Under SB 1383, qualified employees will be entitled to take leave to care for the serious health condition of a grandparent, grandchild, or sibling in addition to the current requirement covering an employee’s parent, child, and spouse or domestic partner.Continue Reading California expands Family Care and Medical Leave eligibility

On September 9, 2020, Governor Newsom signed Assembly Bill (AB) 1867 into law, adding section 248.1 to the Labor Code. Under this new section, “hiring entities” are required to provide supplemental COVID-19 paid sick leave (CPSL) to “covered workers.” This is in addition to any paid sick leave that may be available to the covered workers under California’s Healthy Workplace Healthy Family Act of 2014 (HWHFA)[1].

“Hiring entities” include private businesses with 500 or more employees in the United States or public entities that employ health care providers or emergency responders that have elected to exclude such employees from emergency paid sick leave under the Federal Families First Coronavirus Response Act. Notably, there is no exception for unionized workforces with a collective bargaining agreement providing for paid sick leave.

“Covered workers” include individuals employed by a hiring entity that leave home to perform work. Excluded from covered workers are food sector workers, who are instead provided supplemental COVID-19 paid sick leave under Labor Code section 248.
Continue Reading California requires new COVID-19 supplemental paid sick leave

Effective July 3, 2020, San Francisco’s Back-to-Work Emergency Ordinance (Emergency Ordinance) seeks to mitigate the economic harm for individuals who are unable to work due to the COVID-19 public health emergency by creating a temporary right to reemployment for certain employees laid off due to the coronavirus pandemic if their employer seeks to fill the same, or substantially similar, position previously held by a laid-off worker.  The Emergency Ordinance also imposes written notice and record retention requirements on employers.  The Emergency Ordinance expires on September 2, 2020 unless reenacted.

The Emergency Ordinance contains several key definitions that employers should refer to in order to determine whether any personnel action the employer is considering taking will be subject to the requirements therein.  Of particular importance, the Emergency Ordinance defines Covered Layoff, Covered Employer and Eligible Employees as follows:
Continue Reading San Francisco mandates certain workers be rehired in emergency ordinance

On June 16, 2020, the California Department of Public Health (CDPH) released guidance for employers responding to COVID-19 outbreaks in the workplace. An outbreak at a non-health care or congregate setting workplace is defined as three or more laboratory-confirmed cases of COVID-19 within a two-week period among employees who live in different households.

The guidance provides a road map for local public health departments (LHDs) and employers to use in understanding the steps that should be taken in response to an outbreak at work. In short, employers should be ready to report positive COVID-19 cases to the LHD and to collaborate with the LHD to coordinate a response to the outbreak.Continue Reading California’s recent guidance for employers facing COVID-19 outbreaks