California’s Draft Regulations Spotlight Artificial Intelligence Tools’ Potential to Lead to Discrimination Claims

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.

Cal/OSHA Updates COVID-19 ETS FAQs and Issues Fact Sheet for California Employers

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.

Cal/OSHA’s Third Revision to COVID-19 ETS to Be Approved by May 6, 2022

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.

California Bill Proposes to Prohibit Employment Discrimination Against Marijuana Users

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.”

Cal/OSHA Approves Third COVID-19 Emergency Temporary Standards

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.

Cal/OSHA Standards Board Adopts Third COVID-19 ETS to Remain in Effect Until December 31, 2022

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.

California Court of Appeal Creates Rift Regarding Trial Courts’ Power to Strike or Limit PAGA Claims for Unmanageability

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 Nonsolicitation Clause Held Enforceable Under Narrow Exception for Sale of a Business

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.

Managing a California Remote Work Policy: Determining Which Laws Apply

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.

California’s AB 2243 Would Revise Heat Illness and Wildfire Smoke Standards

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.

California Employers’ Winning Streak in ‘Suitable Seating’ Cases Continues in Latest Appellate Decision

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.

California Governor Newsom Aligns Cal/OSHA Face Covering Regulations With CDPH Guidance

On February 28, 2022, Governor Gavin Newsom issued an executive order that updates the California Division of Occupational Safety and Health’s (Cal/OSHA) COVID-19 Prevention Emergency Temporary Standards (ETS) to align with the California Department of Public Health (CDPH) guidance on face coverings for indoor locations issued the same day.

California Unmasks—California Department of Public Health Revises Guidance for Use of Face Masks in Indoor Settings

On February 28, 2022, the California Department of Public Health (CDPH) issued new guidance, further loosening the rules for wearing COVID-19–related masks in the state. Effective March 1, 2022, unvaccinated individuals are no longer required to mask in indoor public settings, although the CDPH included “a strong recommendation” that all individuals, “regardless of vaccine status, continue indoor masking.”

Los Angeles County and City COVID-19 Masking Orders Move Closer to California Department of Public Health Rules

On February 23, 2022, the Los Angeles County Department of Public Health (LACDPH) issued an order, effective February 25, 2022, that slightly loosened the rules for wearing COVID-19 masks in the county. One day after the LACDPH order, on February 24, 2022, Los Angeles Mayor Eric Garcetti issued the interim “Public Order Under City of Los Angeles Emergency Authority” that mirrored the new Los Angeles County order. While these revisions make the orders from both the county and city much more similar to the California state masking rules currently in effect, they remain stricter than the current state rules.

California Court of Appeal Confirms Expansive Reach of Federal Meal and Rest Break Preemption

The Federal Motor Carrier Safety Administration (FMCSA) regulates the hours of service for drivers of certain property-carrying commercial motor vehicles. The FMCSA’s regulations include meal and rest break rules that generally prohibit drivers from driving if they have gone eight hours without a thirty-minute off-duty or sleeper-berth break. Drivers must also be provided with breaks any time they feel fatigued or are otherwise unable to safely drive.

California Court of Appeal Applies ‘Relation Back’ Doctrine to Substitute PAGA Plaintiff’s Claims Deadline

On February 7, 2022, a California appellate court issued the latest decision regarding the Private Attorneys General Act (PAGA). Representative PAGA actions, which typically involve a relatively brief statute of limitations, permit California employees to collect civil penalties on behalf of the State of California for Labor Code violations committed against them and other employees.

California Considers Assembly Bill 1993 Requiring Proof of COVID-19 Vaccination Status in Employment

On February 10, 2022, Assembly Bill (AB) 1993 was introduced in the California legislature. This bill would amend certain COVID-19 vaccination requirements in employment settings and create a framework for California employers to be responsible for vaccination programs in their workplaces.

California Posts Updated Reference Materials and FAQs for Filing 2021 Pay Data Reports

The California Department of Fair Employment and Housing (DFEH) posted updates to its California Pay Data Reporting Portal User Guide and California Pay Data Reporting: Frequently Asked Questions (FAQ) guidance for the 2021 reporting year on its pay data reporting landing page on January 31, 2022. The DFEH has set the deadline for filing 2021 pay data reports as April 1, 2022.

California’s New COVID-19 Supplemental Paid Sick Leave Law Passes Legislature and Awaits Governor’s Signature

On February 7, 2022, the California legislature passed legislation reviving COVID-19 supplemental paid sick leave (SPSL). The law creates new California Labor Code Section 248.6 and takes effect ten days after Governor Newsom signs the legislation, which we expect is imminent. It applies to all employers with 26 or more employees and will be retroactive to January 1, 2022.

New California Bill Aims to Supersize Fast-Food Workers’ Rights

On January 31, 2022, the California State Assembly passed Assembly Bill (AB) No. 257, the Fast Food Accountability and Standards Recovery Act (FAST Recovery Act), which would potentially provide increased rights to the state’s more than 500,000 fast-food workers. If passed by the California State Senate and signed into law by Governor Gavin Newsom, the FAST Recovery Act would create the Fast Food Sector Council within the California Department of Industrial Relations (DIR) and add new statutory requirements aimed at holding fast-food franchisors liable for certain actions of its franchisees.

Does the Federal Arbitration Act Preempt California’s Private Attorneys General Act? Supreme Court Takes Up Million-Dollar Question

On March 30, 2022, the Supreme Court of the United States will hear the matter of Viking River Cruises, Inc. v. Moriana, Case No. 20-1573. The Court will answer the question, “Whether the Federal Arbitration Act requires enforcement of a bilateral arbitration agreement providing that an employee cannot raise representative claims, including under PAGA.”

The California Privacy Rights Act: Employers’ Compliance Obligations and More

Beginning January 1, 2020, certain California employers were required to comply with portions of the California Consumer Privacy Act of 2018 (CCPA) regarding the collection of consumers’ personal information. On November 3, 2020, California voters passed Proposition 24, the California Privacy Rights Act of 2020 (CPRA), which dramatically strengthened and expanded the CCPA. Employers subject to the CPRA must be in compliance by January 1, 2023. The urgency for employers to start those efforts now to meet this compliance deadline is caused by, among other things, the fact that employees have disclosure rights under the CPRA.

California’s Governor Newsom to Bring Back COVID-19 Supplemental Paid Sick Leave

On January 25, 2022, California Governor Gavin Newsom and California legislative leaders announced they have reached an agreement to require employers again to provide COVID-19 supplemental paid sick leave (SPSL), which expired on September 30, 2021.