On August 1, 2022, the Court of Appeal of the State of California, in Martinez v. Cot’n Wash, Inc., resolved two outstanding issues in the website accessibility field in a way that limits the reach of the Unruh Civil Rights Act (Unruh Act) as part of a growing resistance in the judiciary to an onslaught of website accessibility claims.
On September 15, 2022, the California Occupational Safety and Health Standards Board will continue the long and arduous journey to establish COVID-19 safety measures in the workplace. Since the California Division of Occupational Safety and Health’s (Cal/OSHA) initial ETS took effect in November 2020, the Standards Board has addressed the evolving workplace safety challenges with a series of updates.
With the first six months of 2022 completed, this is a good time to review a busy government reporting season.
There is a new, but not entirely unexpected, front in the continuing war over California Labor Code Private Attorneys General Act (PAGA) claims. On July 20, 2022, the California Supreme Court granted review in Adolph v. Uber Technologies, Inc., opening the door for a ruling that potentially may complicate the relief provided to employers by the recent decision from the Supreme Court of the United States in Viking River Cruises, Inc. v. Moriana.
The COVID-19 pandemic did not slow down the pace of new California Private Attorneys General Act (PAGA) letters being filed with the state Labor Workforce Development Agency (LWDA), according to filing data. Instead, there was a significant increase in the filing of PAGA letters during the height of the COVID-19 pandemic in 2020 and 2021.
On June 30, 2022, the Supreme Court of California issued a decision in Grande v. Eisenhower Medical Center, No. S261247, that could have a far-reaching impact on the relationships between staffing companies and their clients.
On May 6, 2022, the State of California Office of Administrative Law (OAL) adopted the third revision of the California Division of Occupational Safety and Health’s (Cal/OSHA) COVID-19 emergency temporary standards (ETS), which is effective through December 31, 2022. On June 16, 2022, the Cal/OSHA Standards Board released its COVID-19 draft regulation, which is scheduled to take effect on January 1, 2023.
On June 20, 2022, the California Department of Public Health (CDPH) issued COVID-19 guidance, titled “Isolation and Quarantine Q&A,” that offers insight into the recent change to the definition of “close contact.” On June 8, 2022, the CDPH issued a revised order with new definitions of “close contact” and “infectious period.” Because the June 8 order was an “order of the CDPH,” these revised definitions were immediately incorporated into the California Division of Occupational Safety and Health’s (Cal/OSHA) COVID-19 Emergency Temporary Standards (ETS) requirements for exclusion of close contacts, which in turn impacted employers’ obligations under the ETS.
Remote work has exploded since the COVID-19 pandemic began, with some employers hiring employees to work remotely anywhere in the United States. With the recent economic downturn, layoffs are beginning to occur, and for the first time a significant number of remote employees may be included in layoffs. Layoffs of remote employees present unique legal hazards for employers.
Several state and local minimum wage rates will increase in the latter half of 2022, with most of these changes effective on July 1, 2022. Increases to minimum wage rates for nonexempt employees and tipped employees in Florida will occur later in the year, on September 30, 2022.
Currently, the California Division of Occupational Safety and Health’s (Cal/OSHA) COVID-19 Emergency Temporary Standards (ETS) requires employers to review and use current California Department of Public Health (CDPH) guidance for persons who had close contact to an individual with COVID-19, including any guidance regarding quarantine or other measures after a close contact to reduce COVID-19 transmission. On June 8, 2022, the CDPH issued a revised order with new definitions. These revised definitions are therefore immediately incorporated in to the Cal/OSHA ETS requirements for exclusion of close contacts, which in turn impact employers’ obligations under the ETS.
On June 15, 2022, the Supreme Court of the United States ruled in favor of Viking River Cruises Inc. in a case over whether it could use an arbitration agreement to force a lawsuit brought under California’s Private Attorneys General Act (PAGA) on behalf of aggrieved employees into arbitration. In Viking River Cruises, Inc. v. Moriana, No. 20-1573, the Supreme Court’s highly anticipated decision, the Court reasoned that the Federal Arbitration Act (FAA) requires the enforcement of an arbitration agreement that waived an employee’s right to bring individual claims through PAGA and that once those individual claims are sent to arbitration there is no standing to bring representative claims for violations of the California Labor Code on behalf of other aggrieved employees.
The California courts have cast doubt on the legality of laws mandating the number of women and individuals from “underrepresented communities” on the boards of directors of publicly traded corporations based in California.
On May 27, 2022, the San Francisco Office of Labor Standards Enforcement (OLSE) issued its “Proposed Rules Implementing the Family Friendly Workplace Ordinance (as amended).”
On May 25, 2022, the California State Assembly approved Assembly Bill (AB) No. 2243, with the bill now proceeding to the Senate for a vote.
On May 23, 2022, the Supreme Court of California held that premium pay for missed meal and rest periods constitutes “wages” under California labor law and that employers may be held liable for the failure to properly report and timely pay out such wages.
On May 17, 2022, the California Division of Occupational Safety and Health (Cal/OSHA) released a revised discussion draft of proposed regulations for workplace violence prevention in the general industry standards.
California is considering new regulations on the use of technology or artificial intelligence (AI) to screen job candidates or make other employment decisions. If the regulations become law, California would be the first state to adopt substantive restrictions specifically addressing this emerging, and often misunderstood, technology.
On May 7, 2022, the day after the latest revision to the California Division of Occupational Safety and Health’s (Cal/OSHA) COVID-19 Prevention Emergency Temporary Standards (ETS) went into effect, Cal/OSHA issued updated answers to frequently asked questions (FAQs) and a fact sheet. The FAQs continue to evolve and change with each revision and readoption of the ETS. The FAQs now reflect the updated definitions, processes, and changes to the quarantine requirements for close contacts.
As we previously reported, the California Occupational Safety and Health Standards Board recently voted to adopt the proposed revisions to California’s COVID-19 emergency temporary standards (ETS). Reports initially stated that the Office of Administrative Law would likely approve the language for implementation by May 5, 2022. This date has since changed to May 6, 2022.
A bill recently introduced in the California Assembly proposes to prohibit discrimination against employees who use cannabis off the job. The legislation, Assembly Bill (AB) No. 2188, would amend California’s employment antidiscrimination law, the Fair Employment and Housing Act (FEHA), and make it an unlawful practice for an employer to discriminate against an adult applicant or employee based upon the “person’s use of cannabis off the job and away from the workplace.”
The California Division of Occupational Safety and Health (Cal/OSHA) recently approved the third readoption of the COVID-19 Emergency Temporary Standards (ETS) to take effect on May 7, 2022. This ETS will be in effect until December 31, 2022, as the final update to the ETS. The changes mark the continued evolution of the regulations, with modifications and adjustments to definitions, testing protocols, disinfection and sanitizing, close contact rules, return-to-work procedures, and outbreak policies.
On April 21, 2022, by a 6-1 vote, the California Occupational Safety and Health Standards Board voted to adopt the proposed revisions to the current COVID-19 emergency temporary standards (ETS). The only no vote was from a management representative. The Office of Administrative Law is likely to approve the new language for implementation by May 5, 2022.
On November 30, 2020, the California Division of Occupational Safety and Health (Cal/OSHA) adopted the first COVID-19 Emergency Temporary Standards for California. As of April 6, 2022, Cal/OSHA has proposed a third readoption with additional changes and adjustments based on the development of its understanding of COVID-19.
On March 23, 2022, the Court of Appeal of the State of California, Fourth Appellate District, issued the latest ruling on the hotly contested issue of whether a trial court is empowered to dismiss or limit representative claims for alleged violations of the California Labor Code under the Private Attorneys General Act (PAGA) based on manageability concerns.
California law generally prohibits the enforcement of nonsolicitation agreements, but the law includes a narrow exception associated with the sale of a business. In Blue Mountain Enterprises, LLC v. Owen, a recent decision from the Court of Appeal of the State of California, First Appellate District, the appellate court upheld a ruling in favor of the buyer of a business under this exception.
Initially driven by the COVID-19 pandemic, more than two years after the start of the first lockdown, remote work arrangements remain prevalent in California. According to one nonpartisan think tank, 22 percent of Californians work remotely and 15 percent have a mix of working remotely and working outside the home. Given these statistics, an important consideration for California employers may be ensuring that their companies comply with state and local wage and hour laws that may apply to remote workers.
On March 30, 2022, the Supreme Court of the United States heard oral argument in a critically important case for California employers, Viking River Cruises, Inc. v. Moriana, Case No. 20-1573.
On February 10, 2022, California Assemblymember Eduardo Garcia, along with assembly members Luz Rivas and Robert Rivas, introduced Assembly Bill (AB) No. 2243, which would place a number of requirements on the California Division of Occupational Safety and Health (Cal/OSHA) in the areas of heat illness and wildfire smoke.
On February 18, 2022, a California appellate court issued the latest guidance in the continuing saga of statewide “suitable seating” litigation, cementing a significant trial victory for grocers, retailers, and other employers across California.