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

On March 19, 2020, governor of the state of California, Gavin Newsom, issued Executive Order N-33-20 (California Executive Order), effective immediately until further notice. This California Executive Order requires all individuals living in the state of California to stay home, except as needed to maintain continuity of operations of the federal critical infrastructure sectors, as outlined at https://www.cisa.gov/critical-infrastructure-sectors. These sectors include: (1) chemical; (2) commercial facilities; (3) communications; (4) critical manufacturing; (5) dams; (6) defense industrial base; (7) emergency services; (8) energy; (9) financial services; (10) food and agriculture; (11) government facilities; (12) health care and public health; (13) information technology; (14) nuclear reactors, materials, and waste; (15) transportation systems; and (16) water and wastewater systems. Each of those sectors, as outlined in the federal guidelines outlined on that website, includes numerous types of businesses, and employers should consult the guidelines with legal counsel in assessing whether their operations fall within one of the exceptions. The supply chain will continue to allow access to such necessities as food, prescriptions, and health care. People may leave their homes to obtain or perform the functions above, or to facilitate authorized necessary activities.Continue Reading COVID-19: Practical implications of March 19, 2020, state of California and Los Angeles County emergency orders

Employers are facing increasingly difficult business decisions as a result of COVID-19 and, in developing a plan of action, must take care to avoid the many risks for wage and hour litigation that may be asserted in the wake of those decisions, especially as they relate to the execution of temporary layoffs or furloughs. On March 17, 2020, Governor Newsom issued an unprecedented executive order significantly changing notice requirements for employers contemplating layoffs in California. This blog addresses two of the hidden risks that are potentially triggered at the outset of a furlough: (1) WARN notices under both Executive Order N-31-20 and federal WARN, and (2) the payment of wages, including accrued unused vacation or paid time off. Whether employers call it a furlough, a temporary layoff, or a shutdown, the legal analysis is largely the same.

Notification periods under WARN complicate furloughs, even with California’s executive order

In a mass layoff or plant closure situation, employers may be required to provide notice under the federal Worker Adjustment and Retraining Notification (WARN) Act and equivalent California WARN Act (collectively, the Acts). COVID-19 creates WARN compliance challenges for many employers. This is particularly true for employers who are required to quickly shut down operations by state or local mandate, such as bars and gyms in many California cities. These unique circumstances may create a tension with WARN obligations.

Both the federal WARN and California WARN require employers at a covered establishment to provide 60 days’ notice to covered employees prior to a closing or mass layoff, as defined in the Acts. The California WARN, modeled after the federal WARN, applies to a wider range of employees. There are a number of parameters, exceptions, and industry-specific guidelines under both the federal and California WARN. Of utmost importance here, however, is the fact that the California Court of Appeals has held in The International Brotherhood of Boilermakers v. NASSCO Holdings Inc. that California WARN applies to temporarily furloughed employees who have been furloughed for less than six months, even though the same furlough would not have triggered notice obligations under federal WARN which only applies to furloughs in excess of six months.Continue Reading California executive order suspends and modifies California WARN requirements due to COVID-19 but employers contemplating furloughs are not yet in the clear