A new California law, Assembly Bill (AB) No. 701, provides new regulatory scrutiny of job performance quotas at warehouse distribution centers. The stated purpose of the law is to ensure that the use of production quotas do not penalize workers for taking meal and rest breaks, using the restroom, and complying with other health and safety standards.
On November 15, 2021, the Supreme Court of the United States issued an order concerning the California Trucking Association’s (CTA) challenge to California’s independent contractor law, Assembly Bill (AB) 5. The Supreme Court‘s order invited the United States Solicitor General (SG) to file a submission describing the federal government’s position with respect to this case and the question CTA posed to the Court that the Federal Aviation Administration Authorization Act of 1994 (FAAAA) preempts AB 5.
On November 4, 2021, the Occupational Safety and Health Administration (OSHA) issued an emergency temporary standard (ETS) to minimize the risk of COVID-19 transmission in the workplace. The California Division of Occupational Safety and Health (Cal/OSHA) was planning to update and adopt new language for the California COVID-19 ETS that would take effect in January 2022. However, California’s proposed language for the revised ETS does not match the language of OSHA’s ETS, leaving many wondering if California will now revise the proposed language to bring the California ETS into alignment with the federal standard and proceed with the “Horcher” adoption process to quickly adopt the federal OSHA requirements.
On October 20, 2021, the U.S. Chamber of Commerce, the lead plaintiff challenging AB 51, filed a petition for rehearing en banc with the U.S. Court of Appeals for the Ninth Circuit, seeking to reverse the Ninth Circuit’s decision in Chamber of Commerce of the United States of America v. Bonta, No. 20-15291 (September 16, 2021), partially upholding AB 51.
On October 20, 2021, California’s Division of Occupational Safety and Health (known as Cal/OSHA) issued proposed language for the second readoption of Emergency Temporary Standards (ETS) for COVID-19 Prevention.
The Court of Appeal of the State of California, Fourth Appellate District, recently handed a potentially significant website accessibility win to the business community under the Unruh Civil Rights Act (Unruh Act) when it upheld a jury verdict in Thurston v. Omni Hotels Mgmt. Corp. (Cal. Ct. App. Sept. 23, 2021), finding that the blind user of a hotel’s website reservation mechanism lacked a “bona fide intent” to make a hotel reservation.
On September 30, 2021, California Governor Gavin Newsom signed into law Assembly Bill (AB) No. 1578, which amends Government Code section 11425.20(a) to provide that administrative hearings shall be open to the public, including by live audio or video.
On October 7, 2021, California Governor Gavin Newsom signed Senate Bill (SB) No. 331 into law. SB 331 is known as the “Silenced No More Act.” It amends California Code of Civil Procedure Section 1001 and the California Fair Employment and Housing Act (FEHA) and imposes significant new restrictions on severance and settlement agreements.
To address the prevalent and ongoing practice of permitting employees to work from home, a new California law authorizes employers to provide required workplace notifications to their employees as attachments to emails. Senate Bill (SB) No. 657 was signed into law on July 16, 2021. While the new law maintains the requirement to physically display mandatory postings in the workplace, SB 657 also provides California employers with a new way to provide important notifications to employees about wage and hour issues that could help deter employers from class and collective action liability regarding such claims.
A federation of hotel and motel owners and operators challenged a San Diego ordinance that requires certain building service and hospitality employers to recall workers laid off due to the pandemic before hiring new employees.
On July 15, 2021, in Ferra v. Loews Hollywood Hotel, LLC, the Supreme Court of California set forth a new rule requiring that premiums for meal, rest, and recovery break violations be paid at the regular rate of pay.
On September 9, 2021, a California Court of Appeal issued its ruling in Wesson v. Staples the Office Superstore, LLC, delivering a welcome victory to employers battling representative actions under the Private Attorneys General Act (PAGA). Under the 2004 law, an “aggrieved employee” is empowered to commence a PAGA representative action on behalf of all other “aggrieved employees” to seek civil penalties for alleged violations of the California Labor Code.
In a split 2-1 decision that likely raises more questions than it answers, the Ninth Circuit Court of Appeals cast some doubt upon the ability of employers to implement mandatory arbitration agreements with their employees. In Chamber of Commerce of the United States of America v. Bonta, the Ninth Circuit upheld portions of California Labor Code section 432.6, which prohibits employers from making arbitration agreements a condition of employment and imposes significant criminal and civil sanctions for violations. The Ninth Circuit’s decision holds that arbitration agreements signed by parties remain enforceable (even if they violate section 432.6), while parties who refused to sign an arbitration agreement may still seek a remedy against the employer under the statute.
The California Legislature will soon send Senate Bill (SB) No. 606 to Governor Gavin Newsom, who is likely to sign the bill into law. The bill would make substantial changes to the California Division of Occupational Safety and Health’s (Cal/OSHA) citation structure by creating two new categories of violations: “enterprise-wide” and “egregious.” The bill would also provide Cal/OSHA with additional subpoena power during investigations.
California Assembly Bill (AB) 1003 would create a new type of grand theft in the state: a company’s “intentional theft of wages” of more than $950 from any individual employee, or $2,350 total from 2 or more employees, in a 12-month period. The bill requires that the theft be intentional, through fraud and while knowing that the wages are due to the employee. The bill also defines “wages” to include “wages, gratuities, benefits, or other compensation.”
On September 29, 2020, California Governor Gavin Newsom signed into law Assembly Bill (AB) 2537, one of the latest in a series of legislative enactments designed to protect employees from COVID-19 exposure in the workplace.
On August 2, 2021, the City and County of San Francisco updated Health Officer Order No. C19-07y, entitled “Encouraging COVID-19 Vaccine Coverage and Reducing Disease Risks (Safer Return Together),” to require all individuals, including the fully vaccinated, to wear face coverings in indoor public settings, with some exceptions.
If an employee is passed over for a promotion due to alleged harassment, does the failure to promote happen when the employer decides to promote someone else or when the successful candidate actually takes on the role?
The pandemic continues to loom large over the California legislature this year, as indicated by the bills advancing through the legislative process. Below is a summary of the major employment law bills that are working their way through the state Assembly and Senate. The bills pertain to the expansion of medical and sick leave, postings for employees working remotely, and warehouse production quotas for facilities that have ramped up operations during the pandemic.
On July 21, 2021, the City of Pasadena health officer issued an order titled, “Order for Wearing of Face Masks in Public Settings.” As did the Los Angeles County Department of Public Health’s (LACDPH) health order of the previous week, the City of Pasadena’s health order requires all individuals “regardless of vaccination status” to wear face coverings in “all indoor public settings, venues, gatherings, and businesses.”
On Friday, July 16, 2021, the Los Angeles County Department of Public Health (LACDPH) issued a health order requiring all individuals regardless of vaccination status to wear face coverings in “[a]ll indoor public settings, venues, gatherings, and businesses.” The order’s list of locations in which all individuals must wear face coverings includes “offices, retail, restaurants, theaters, family entertainment centers, meetings, and state and local government offices serving the public.”
On July 15, 2021, the California Supreme Court issued a decision that will increase dramatically California employers’ potential liability for missed meal, rest, and recovery breaks. In Ferra v. Loews Hollywood Hotel, LLC, the court unanimously held that employers must pay premium payments to employees for missed meal, rest, and recovery breaks at the employee’s “regular rate of pay” instead of their base hourly rate, as many employers were doing.
The Ninth Circuit Court of Appeals recently took a fresh look at the test for discrimination under Section 105(c) of the Federal Mine Safety and Health Act of 1977 (Mine Act), issuing a decision that could signal a major shift in the way Mine Safety and Health Administration (MSHA) discrimination cases are litigated.
On June 17, 2021, at the end of yet another chaotic day in administrative rulemaking, California’s new COVID-19 Emergency Temporary Standards (ETS) finally became effective. The ETS bring substantial changes to the COVID-19 regulatory requirements with which employers have struggled since California’s Division of Occupational Safety and Health (Cal/OSHA) initial ETS took effect almost 7 months ago, on November 30, 2020.
On May 28, 2021, the Ninth Circuit Court of Appeals issued a significant ruling in Magadia v. Wal-Mart Associates, Inc., on both California’s wage statement laws and standing to pursue claims under the Private Attorneys General Act of 2004 (PAGA) in federal court.
On June 11, 2021, the Occupational Safety & Health Standards Board of California’s Division of Occupational Safety and Health (Cal/OSHA) published proposed revisions to the current Cal/OSHA COVID-19 Emergency Temporary Standard (ETS). On June 17, 2021, the Standards Board will meet again to vote on adopting proposed revisions. This is the third updated revision that the Standards Board has considered in the last month. Until the new ETS takes effect, employers must comply with the November 30, 2020, ETS, which remains in place.
On June 9, 2021, the Occupational Safety & Health Standards Board of California’s Division of Occupational Safety and Health (Cal/OSHA) voted to withdraw the previously submitted Emergency Temporary Standard (ETS) changes and instead consider further revisions at its June 17, 2021, meeting.
On January 1, 2020, California’s new lactation accommodation law, Senate Bill (SB) 142, went into effect and imposed detailed requirements for employers to provide lactation rooms and other facilities, along with new policies and procedures to administer lactation break programs. Just two months later, most California employees started working remotely from home due to the COVID-19 pandemic and state and local ordinances. Thus, most employers had not yet fully implemented the new accommodation requirements before employees left the workplace. Now that many employees are getting vaccinated and returning to the workplace, it is a good time for California employers to review their lactation accommodation policies to ensure that they fully comply with the law.
On June 3, 2021, the Occupational Safety & Health Standards Board of California’s Division of Occupational Safety and Health (Cal/OSHA) was initially unable to pass the proposed changes to the COVID-19 Emergency Temporary Standard (ETS) after a daylong online hearing with more than 500 individuals logged on to the meeting and 5 hours of public comment. The Standards Board had previously decided to table the expected vote on Cal/OSHA’s revisions to its COVID-19 ETS at their May 20, 2021, meeting and requested an updated revision for the June 3, 2021, vote. After a break in the proceedings, the Board agreed to have another vote and passed the proposed regulation in a stunning turn of events.
On May 20, 2021, the Occupational Safety & Health Standards Board of California’s Division of Occupational Safety and Health (Cal/OSHA) decided to table the expected vote on Cal/OSHA’s revisions to its COVID-19 Emergency Temporary Standard (ETS). Instead, the Standards Board requested that Cal/OSHA draft a new proposed regulation for the Standard Board’s consideration during a special June 3, 2021, meeting.