California Governor Extends Wage Claim and Cal/OSHA Deadlines

In response to the ongoing COVID-19 pandemic and its continued impact on daily life, Governor Gavin Newsom issued Executive Order (EO) N-63-20 on May 7, 2020, extending certain statutory and regulatory deadlines for individuals, businesses, and governmental agencies in California. In addition to other temporary changes, EO N-63-20 extends the time for employees to file certain claims for unpaid wages with the state labor commissioner, the time for the state to issue certain workplace safety citations under the California Occupational Safety and Health Act, and the time for employers to appeal such citations.

Occupational Safety and Health Citations

California Labor Code Section 6317 empowers the California Division of Occupational Safety and Health (Cal/OSHA) to issue a citation or notice of violation for any of the rules enforced by Cal/OSHA within six months after the occurrence of the alleged violation. EO N-63-20 extends the time in which Cal/OSHA may issue such citations “for a period of 60 days to the limited extent” that such citations “would otherwise elapse in the 60-day period” following the order. [Emphasis added.] In other words, the executive order only extends the time for Cal/OSHA to issue any citation in which the six-month statute of limitations was set to expire between May 7, 2020, and July 6, 2020, an unprecedented extension never before seen in California. This extension may allow for the inspectors who have been working remotely and who have been limited in their ability to conduct onsite inspections to work through their backlog of inspections and issue citations to California employers.

For employers, the inverse of this order is that EO N-63-20 extends the time for employers to appeal Cal/OSHA citations from 15 working days after receipt to 75 days. Again, this only applies to those appeals that would otherwise require filing within the 60-day period between May 7, 2020, and July 6, 2020. In most cases, any citation issued during this 60-day period will not require an appeal until 75 days after receipt. These additional days have never been used before in the administrative appeal process.

Claims for Unpaid Wages and Discrimination

EO N-63-20 also extends the time for workers to file claims that would otherwise expire between May 7, 2020, and June 6, 2020, with the California Department of Industrial Relations, Division of Labor Standards Enforcement by 60 days. As with the changes involving citations and appeals by Cal/OSHA, this measure only impacts those claims for wages, discrimination, or other protections under the Labor Code that would otherwise expire during this 60-day period. It is unclear at this time whether such rules would impact the statute of limitations for bringing such claims (where appropriate) in court, or just those claims that proceed before the labor commissioner. The claims specifically identified by the governor’s order include all claims for unpaid wages (Labor Code § 98), discrimination (Labor Code § 98.7), and protections for workers in the talent agency and garment manufacturing industries (Labor Code §§ 1700.44, and 2673.1).

Ogletree Deakins will continue to monitor and report on developments with respect to the COVID-19 pandemic and will post updates in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available. Critical information for employers is also available via the firm’s webinar programs.