Although California was one of the first states to legalize medical cannabis, and later recreational cannabis, voters and the courts have long resisted extending protections against discrimination in employment to cannabis users. In 1996, California voters passed Proposition 215, also known as the Compassionate Use Act of 1996, legalizing the use of cannabis for medical purposes, such as the treatment of anorexia, arthritis, chronic pain, and migraines.
On May 12, 2020, the California Division of Occupational Safety and Health (DOSH), better known as Cal/OSHA, issued its COVID-19 Industry Guidance: Office Workspaces, which provides detailed guidance for operating in office workspaces to “support a safe, clean environment for employees” in the face of the COVID-19 pandemic.
A new bill has been introduced in the California Assembly that could affect most employers and employees in the state. If passed in its current form, Assembly Bill (AB) 1844 would expand paid sick leave coverage to employees and their family members for behavioral health conditions.
On May 4, 2020, Mayor Eric Garcetti signed two new ordinances governing employee right of recall and worker retention in the City of Los Angeles. The ordinances provide certain rights and preferences to various workers whose employment has been affected by the COVID-19 crisis.
Current California Labor Code Section 98.7 provides that any person who believes that he or she has been discharged from employment or otherwise discriminated against in violation of any law under the jurisdiction of the California Division of Labor Standards Enforcement (DLSE) may file a complaint with the DLSE within six months after the occurrence of the alleged violation.
The State of California, through the Department of Public Health, Department of Social Services, and the Division of Occupational Safety and Health (Cal/OSHA), has released COVID-19 guidance and checklists for 20 different industries as employers prepare to reopen and employees head back to work.
On May 12, 2020, the California Division of Occupational Safety and Health (DOSH) (better known as Cal/OSHA) issued its COVID-19 Industry Guidance: Dine-In Restaurants, which provides detailed guidance to dine-in restaurants, brewpubs, craft distilleries, breweries, bars, pubs, and wineries that provide sit-down meals on how to support safe and clean work environments for employees and customers.
On April 30, 2020, the Supreme Court of California issued its decision in Nationwide Biweekly Administration, Inc. v. Superior Court of Alameda County, a case that received a fair amount of attention in 2019 when it seemed possible the court might allow claims under California Business & Professions Code Sections 17200 et seq. and 17500 et seq. (commonly called the unfair competition law (UCL)) to be tried by jury.
The Ninth Circuit recently issued two mostly pro-employer federal Fair Credit Reporting Act (FCRA) background check decisions.
On May 7, 2020, the California Division of Occupational Safety and Health (DOSH), better known as Cal/OSHA, issued its COVID-19 Industry Guidance: Logistics and Warehousing Facilities, which provides detailed guidance to logistics and warehouse facilities on how to support a safe and clean work environment for workers in order to avoid the outbreak and transmittal of COVID-19 in the workplace.
In recent years, California employers have faced an increasing number of class action lawsuits related to background check practices commonly used in the hiring process. These lawsuits arise from the Fair Credit Reporting Act (FCRA), a federal law that regulates the collection, dissemination, and use of consumer information.
The California Department of Public Health and the California Division of Occupational Safety and Health (Cal/OSHA) recently released industry guidance for logistics and warehousing facilities in light of the COVID-19 pandemic.
During a May 6, 2020, press briefing, Governor Newsom announced his latest executive order addressing COVID-19 in the workplace. Executive Order N-62-20 creates a workers’ compensation rebuttable presumption that employees diagnosed with COVID-19 contracted the virus at work. This order will apply retroactively to employees who test positive for COVID-19 and have worked outside the home from March 19, 2020, until July 5, 2020 and is broadly worded to include “[a]ny COVID-19 related illness.”
Although California law does not require that employers provide bereavement leave for employees, most employers provide the benefit as a form of unpaid leave, typically for up to five working days. Recently, Assembly Bill (AB) 2999 was introduced to mandate bereavement leave as a new form of protective leave in California.
On April 28, 2020, the County of Los Angeles Board of Supervisors unanimously passed an interim urgency ordinance requiring employers with 500 or more employees to provide supplemental paid leave for COVID-19-related reasons. This follows similar measures taken over recent weeks in other local jurisdictions, such as San Francisco.
On April 17, 2020, Mayor London Breed signed the San Francisco Public Health Emergency Leave Ordinance (PHELO). The San Francisco Board of Supervisors had passed the ordinance earlier in the week. Like similar ordinances adopted in Los Angeles and San José, San Francisco’s ordinance supplements the federal Families First Coronavirus Response Act (FFCRA) and requires employers with 500 or more employees to provide up to 80 hours of paid leave to employees in both the city and county of San Francisco.
On April 16, 2020, California Governor Gavin Newsom signed Executive Order (EO) N-51-20, which imposes new obligations on employers to provide up to 80 hours of supplemental paid sick leave to certain food sector workers. The following overview provides answers to common questions, including: (1) which food service workers are covered by EO N-51-20; (2) what an employer’s obligations are to those covered workers; and (3) how EO N-51-20 interacts with other laws.
In response to “stay-at-home” orders issued by Governor Gavin Newsom and various California municipalities to prevent the further spread of the coronavirus (SARS-CoV-2) employers have been asking or requiring employees to work from home. In this regard, there may be uncertainty about whether employers are required to reimburse employees for expenses incurred to perform remote work. It can sometimes be difficult to determine which expenses, if any, employers must reimburse, and the amount of such reimbursements. Must an employer reimburse remote workers for all cell phone usage since supervisors are calling employees at home? What about printer ink costs? How about internet service?
As a result of COVID-19’s impact on the healthcare industry, both the U.S. Occupational Safety and Health Administration (OSHA) and state plans like California’s Division of Occupational Safety and Health (more commonly known as Cal/OSHA) are seeing a significant increase in complaints, inspections, and investigations of workplace illnesses and fatalities. Anecdotally, the healthcare industry, including nursing homes, rehabilitation facilities, hospitals, acute care services, and senior living facilities, appear to be facing a huge wave of regulatory inspections at a never-before-seen pace.
On April 7, 2020, the City of San José, California adopted Urgency Ordinance No. 30390 (also known as the COVID-19 Paid Sick Leave Ordinance). The ordinance’s purpose is to extend temporary paid sick leave obligations to employers that the Families First Coronavirus Response Act (FFCRA) exempted from providing emergency paid sick leave.
Recently, some employers in California have turned to flexible work arrangements and unlimited paid vacation policies as a tool for recruiting and retaining employees. Before April 2020, however, no California court had addressed whether a nonaccrual, unlimited paid time-off policy was subject to Labor Code Section 227.3, thereby requiring an employer to pay out vested vacation time at the time of an employee’s discharge. Although the California Court of Appeal somewhat sidestepped the issue, its recent decision in McPherson v. EF Intercultural Foundation, Inc., No. B290868 (April 1, 2020), highlighted the potential exposure California employers may face when offering “unlimited” vacation policies that are not clearly communicated to employees. This decision is of particular interest to employers with “unlimited” vacation policies that may be facing substantial vacation payouts in light of terminations, layoffs, and furloughs caused by the COVID-19 pandemic.
Although the Supreme Court of the United States has not yet taken up the issue, California courts routinely hold an employee cannot be compelled to submit to arbitration an action seeking penalties under the Private Attorneys General Act of 2004 (PAGA), although the employee may be compelled to arbitrate his or her individual wage claims. In determining whether a litigant seeks individual damages and therefore may be compelled to arbitrate wage claims, does the plaintiff’s Labor and Workforce Development Agency (LWDA) notice letter control?
On March 23, 2020, the California Department of Industrial Relations (DIR) issued “Guidance on [the] Conditional Suspension of California WARN Act Notice Requirements under Executive Order N-31-20.” The DIR provided guidance to further clarify Governor Gavin Newsom’s Executive Order N-31-20 (March 17, 2020), which temporarily suspended Cal-WARN’s typical 60-day notice requirement for layoffs or business closures. The guidance may assist employers in understanding their Cal-WARN obligations when faced with making temporary or permanent staffing reductions (or relocations) as a result of COVID-19 prevention and mitigation efforts.
The Los Angeles City Council recently passed an ordinance providing supplemental paid sick leave to employees affected by COVID-19 who were employed “with the same Employer from February 3, 2020 through March 4, 2020.” Los Angeles mayor Eric Garcetti had until April 7, 2020, to sign the ordinance adding Article 5-72HH to Chapter XX of the Los Angeles Municipal Code. Instead, on April 7, Mayor Garcetti signed an emergency COVID-19 Supplemental Paid Sick Leave order with significant modifications to the council’s version of the sick leave ordinance in order to balance the potential burdens on businesses.
On April 7, 2020, the California Department of Industrial Relations’ Division of Occupational Safety and Health (Cal/OSHA) issued COVID-19 Safety and Health Guidance (in English and Spanish) for agricultural employers. The guidance is not a new legal obligation but rather a reminder that COVID-19 is a workplace hazard to be addressed by an Injury and Illness Prevention Program (IIPP).
Unfortunately, given the fast spread of the disease, it is now not uncommon for employers to have at least one employee who has contracted COVID-19, forcing the employee to take extended time off from work. In many cases, these employees will not have enough paid time off available to keep them paid until they are able to return to work. In some workplaces, generous co-workers are willing to donate their paid time off to the sick employee, and employers are exploring ways to implement paid-time-off donation or leave-sharing policies. As with everything in California, paid-time-off donation and leave-sharing policies present challenges and, if not implemented correctly, could come back to haunt the employer and the employees.
On March 27, 2020, President Donald Trump signed the Coronavirus Aid, Relief, and Economic Security (CARES) Act. Among other important provisions, the CARES Act dramatically expands the availability of unemployment insurance (UI) benefits to workers impacted by COVID-19 who otherwise would not normally receive such benefits, including independent contractors and other so-called gig workers.
On March 27, 2020, the Los Angeles City Council passed Article 5-72HH “COVID-19 Supplemental Paid Sick Leave,” an ordinance that would require “employers with 500 or more employees nationally” to provide 80 hours of paid sick leave to their employees working in the City of Los Angeles.
With the rapid onset of the COVID-19 pandemic, California employers have endeavored to ensure the health and safety of their workforces while at the same time heeding the anti-discrimination provisions of the California Fair Employment and Housing Act (FEHA). Addressing a number of unique issues arising out of the current crises, on March 20, 2020, the California Department of Fair Employment and Housing (DFEH) issued answers to frequently asked questions (FAQs) about the COVID-19 pandemic. The FAQs address compliance with both the anti-discrimination provisions in FEHA as well as leave of absence rights found in the California Family Rights Act (CFRA).
On March 19, 2020 California Governor Gavin Newsom issued Executive Order N-33-20 directing all residents to stay at home, except as necessary to maintain “essential critical infrastructure sectors.” The order left open the potential for the governor to add additional sectors whose workers may continue to report to work.