Ninth Circuit Rules Time Booting Up Computer Before Clocking In Is Compensable
The Ninth Circuit Court of Appeals issued a decision earlier this week holding that employees who worked at a call center were entitled to compensation for the time spent booting up their computers at the start of the work day prior to clocking in. The call center employees conducted the majority of their jobs using their computers, thus the Court determined that turning on and booting up the computers was “integral and indispensable” to the workers’ duties. Under the FLSA, duties that are “integral and indispensable” are considered principal activities and must be compensated.
For employers in California, this is another sign that both state and federal courts are moving towards requiring employers to compensate employees for time spent prior to clocking in where employees are completing tasks that are required by the employer or indispensable for their jobs. Some examples include: booting up computers, cleaning and preparing tools, and putting on a uniform or safety equipment.
Employers should review the tasks that non-exempt employees undertake prior to clocking in each day to determine if those duties are related to their jobs and should be compensated. If employees are completing tasks that are “integral and indispensable” to their jobs prior to clocking in, employers should determine the average amount of time the tasks take to complete each day and add that amount to employees’ paychecks.
For those who are interested in reading the full decision, the case is Cariene Cadena and Andrew Gonzales v. Customer Connexx, LLC and Janone, Inc., case number 21-16522.
COVID-19 Employment Update Emails By Date
Throughout the COVID-19 crisis our employment department has kept clients informed. Below are the emails by date with the newest at the top. As we send each new update we will update this resource page so that people can review as needed.
Note: These posts are made available for general informational purposes only and none of the information provided should be considered to constitute legal advice.
Flexible Workplace Options for Employers
As more employees return to the workplace, employers are searching for ways to retain existing employees and attract new talent in a changing landscape where remote work and shorter workweeks are becoming more common. This article looks at two options for employers who are seeking to give employees greater flexibility in their schedules and how to remain compliant with California labor laws in the process.
Alternative Workweek Schedule
One option for employers is to implement an alternative workweek schedule (“AWS”), which provides greater flexibility by allowing employees to work longer shifts on less workdays. The AWS also permits non-exempt employees to work more than 8 hours in a day without incurring daily overtime. The most common AWS is the 4/10, where employees work 4 days a week for 10 hours each day.
Under an AWS, no overtime is required for a regular schedule of not more than 10 hours per workday within a 40-hour workweek. If employees work longer than 10 hours a day on an AWS, they are entitled to overtime pay at one-and-one-half times their regular rate of pay for all time worked between 10 and 12 hours, and double their regular rate of pay for any hours worked over 12 hours. Additionally, employees are entitled to overtime for all hours worked on any day that is not included in the AWS at one-and-one-half times their regular rate for the first 8 hours and double their regular rate of pay for any hours worked over 8 hours.
An AWS can be used for an entire company, or any identifiable “work unit” including a department, a shift, or a particular location. The AWS must be approved by a secret ballot election of at least two-thirds of the affected employees in the work unit. Employers can propose one schedule for all employees in the work unit or provide a menu of schedule options that each employee can choose from.
Once the work unit and AWS is determined, employers should follow the steps below to implement the AWS.
- Notice. Send a notice to all employees in the work unit regarding the proposed schedule change and describe how the change will affect their hours, wages, and benefits.
- Pre-Election Meeting and Disclosure. Employers are required to hold a pre-election meeting at least 14 days before the secret ballot election to discuss the proposed alternative workweek schedule. Employers must also provide all employees with a written disclosure that includes the information discussed at the meeting. If at least 5% of the employees in the work unit speak a language other than English, employers must provide the disclosure in that language as well.
- Secret Ballot Election. Hold the election at the worksite during regular work hours. If some employees in the work unit are not present for the election, they can provide an absentee ballot upon their return.
- Notify DLSE. If the AWS is approved by the employees in the work unit, the election results must be mailed to the Department of Industrial Relations. Employers should follow the instructions on the DLSE website regarding where to send the notice and what information to include: https://www.dir.ca.gov/databases/oprl/dlsr-awe.html.
- Implement Schedule: Employers may not require employees to work the new AWS for at least 30 days after the final results of the election.
Employers must also make reasonable efforts to accommodate a schedule with 8-hour work days for employees who voted in the election but are unable to work the AWS, employees who have a religious belief or observance that conflict with the AWS, and employees who are hired after the date of the election and are unable to work the AWS.
Hybrid Work Schedule
While remote work has gained popularity amongst employees and employers, for many companies it is necessary to have employees physically present in the workplace. One option for employers is to create a hybrid remote work schedule that allows employees to work remotely part of the time. Employers can require a certain number of days at the workplace each week, or create set schedules designating the specific days of the week on which employees will work remotely.
Employers should have a written policy in place that describes which employees or groups of employees are eligible for remote work, how to request a remote work schedule and who needs to approve it, and the expectations for employees when working remotely.
If remote work is provided as a purely voluntary option for the benefit of the employee, and it is not a requirement of their job, employers are not obligated to reimburse employees for expenses incurred in working remotely.
We recommend working with counsel to implement either an AWS or a remote work policy to ensure compliance with all California labor laws.
COVID-19 Supplemental Paid Sick Leave: New California State COVID Leave Law Applies to all California Employers with 26 or More Employees
On February 9, 2022, Governor Newsom signed the new COVID-19 Supplemental Paid Sick Leave law (SB-114), which is retroactive to January 1, 2022 and extends through September 30, 2022.
Similar to the previous law that provided COVID-19 supplemental paid sick leave and expired last year, the new COVID-19 Supplemental Paid Sick Leave law requires employers in California with 26 or more employees to provide up to a total of 80 hours of paid sick leave to employees for certain COVID-19 related reasons. While we expect updated FAQs on the new law from the DIR soon, the key details from the statute are included below.
- 26+ Employees: The law requires employers with 26 or more employees to provide supplemental paid sick leave for certain COVID-19 related reasons.
- Retroactive to January 1 and through September 30: The requirement to provide the paid sick leave will take effect on February 19 (10 days after the law was signed by the Governor), at which point it will be retroactive to January 1 and extend until September 30, 2022. Employers are required to provide retroactive payments to any employees who were provided with an unpaid leave for qualifying reasons since January 1 at the request of the employee (either orally or in writing). The retroactive payment must be paid on or before the payday for the next full pay period after it is requested by the employee.
- Two Categories of Paid Leave (up to 40 hours each): The new supplemental paid sick leave is split into two categories – the first allows employees to take up to 40 hours of leave for COVID related reasons similar to the prior law, and the second allows employees to take an additional 40 hours of leave if they or their family member test positive for COVID-19.
- First Category: Employers must provide up to 40 hours of supplemental paid sick leave for employees that are unable to work or telework due to any of the following reasons:
- Employee is subject to quarantine or isolation order or guidelines due to COVID-19;
- Employee is advised to quarantine or isolate by heath care provider;
- Employee is attending an appointment for themselves or a family member to get a vaccine or booster and/or experiencing symptoms from a vaccine or booster or caring for a family member who is experiencing symptoms from a vaccine or booster (limit of 24 hours per vaccination/booster – see below);
- Employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
- Employee is caring for a family member who is subject to quarantine, or has been advised to isolate;
- Employee is caring for a child whose school or child care is closed or unavailable due to COVID-19.
- Second Category: Employees who test positive for COVID-19, or have to care for a family member who tests positive, are entitled to an additional 40 hours of supplemental paid sick leave. Employers can request proof of a positive test for the employee or family member prior to providing the supplemental paid sick leave. If an employee refuses to get tested or provide test results to the employer, employers are not obligated to provide the additional 40 hours of supplemental paid sick leave. Employers can require documentation of a positive COVID test for retroactive payments requested by the employee as well. Employers are required to pay for the test for employees, but it is unclear if employers will also be required to pay for tests for family members of employees.
- Amount of Leave: Full-time employees that work at least 40 hours per week on average are entitled to 40 hours of supplemental paid sick leave under each category, for a total of 80 hours of supplemental paid sick leave. Other non-full-time employees are entitled to the average amount of hours they normally work over a 14-day period.
- 24-hour Limit for COVID Vaccine/Booster: Employers can limit the supplemental paid sick leave an employee can use for each vaccine or booster and any related side effects, for themselves of a family member, to three days (24 hours), unless the employee provides verification from a healthcare provider that the symptoms are continuing after three days.
- Amount of Pay: Supplemental paid sick leave should be paid at the employee’s regular rate of pay, up to a maximum of $511 per day and no more than $5,110 total per employee. An employee’s regular rate includes any commissions or non-discretionary bonuses.
- Must List Amount Used on Wage Statements: The COVID-19 Supplemental Paid Sick Leave is a separate entitlement from other paid sick leave provided by the employer and must be listed separately on the written notice or wage statement provided to employees each pay period. However, instead of listing the available balance of supplemental paid sick leave, employers are only required to list the amount of leave that has been used to date. If an employee has not yet used any leave, their statement should list “zero.”
- Cannot Require Substitution of Other Leaves: The supplemental paid sick leave is in addition to other paid leave. Thus, employers cannot require employees to substitute their vacation, PTO, or other paid sick leave when using supplemental paid sick leave.
- Distinct from Cal/OSHA ETS Exclusion Pay: Employers cannot require employees to first exhaust their supplemental paid sick leave when exclusion pay is required to be paid under the Cal/OSHA ETS. Based on this, it appears employers cannot apply these hours toward the exclusion pay obligation when employees are required to be excluded from the workplace due to a workplace exposure to COVID-19 but we expect clarification on this requirement in the forthcoming FAQs.
- Notice Requirement: The Labor Commissioner is required to make a model notice available for employers to send to employees, which should be available shortly. The notice should be posted in the workplace and must be emailed to employees who do not frequent a workplace.
COVID-19 Leave: Employer Obligations After September 30
State and Federal COVID-19 Leave Laws Are Set to Expire on September 30, 2021
As of the date of this article, both the federal and the California COVID-19 leave laws are set to expire on September 30, 2021 and it does not appear that either the State or Federal legislatures will be extending these provisions. The California law, SB-95, requires employers with 26 or more employees to provide up to 80 hours of supplemental paid sick leave for COVID-19 reasons from January 1 to September 30, 2021. The American Rescue Plan Act, which was passed by Congress earlier this year, extended the ability of employers to take a tax credit against their payroll taxes for offering leave to employees for COVID-19 reasons through September 30, 2021. Additionally, the optional COVID-19 related leaves under the federal law, Emergency Paid Sick Leave and Emergency FMLA, both expire on September 30.
After September 30, 2021, employers with 26 or more employees will no longer be required to provide the COVID-19 supplemental paid sick leave under California law. Employers of any size may still choose to put their own COVID-19 policies in place that provide pay for employees who miss work for COVID related reasons, however, employers will no longer receive a tax credit for those payments.
California’s law required employers to initially give notice to employees regarding the availability of the COVID-19 supplemental paid sick leave and the time period of the leave. However, employers may want to remind employees that the leave is expiring on September 30. Note that if an employee is already taking COVID-19 supplemental paid sick leave at the time the leave expires on September 30, they are permitted to take the full amount of leave that they are entitled to even if it extends past September 30.
Employer Pay Obligations After September 30
Although employers will no longer be required to provide separate supplemental paid sick leave for COVID-19 purposes after September 30, under the Cal/OSHA Emergency Temporary Standards (“ETS”) employers must maintain all pay and benefits for employees who are required to be excluded from the workplace due to COVID-19 and otherwise able to work. Employees may choose to use their regular paid sick leave during the exclusion period; however, employers cannot require employees to use their regular paid sick leave.
The exclusion pay is only required for cases of workplace exposure to COVID-19, therefore, if employers are able to show that an employee’s exposure to COVID was outside the workplace no exclusion pay is required in that case. Employers also do not have to pay an employee that receives disability payments or worker’s compensation during the exclusion period. For more information on the Cal/OSHA ETS exclusion pay you can access the DIR’s FAQ page here.
Additionally, many employers are now requiring vaccinations and/or regular COVID-19 testing as a condition of employment. If employees are required to receive the vaccine as part of their job, employers must pay for the cost of the vaccine, if any, and the time it takes the employee to get vaccinated. Further, the DIR issued an FAQ on COVID-19 testing that states that employers must pay for the cost of COVID-19 testing if it is a requirement of the job. This includes paying for the test itself, the time it takes the employee to get tested (including any travel time), and reimbursing employees for travel expenses if the testing location is not at their regular workplace. You can read the DIR’s full FAQ on COVID-19 testing here.
Employee Leave Options After September 30
Even though the State and federal COVID-19 leaves are expiring on September 30, many employees will still need to take time off from work for COVID-19 related reasons. Unless their employers have their own COVID-19 policies in place, much of this time off work may be unpaid.
If an employee is sick with COVID-19 symptoms or is caring for a family member who has COVID-19 symptoms, they can use their regular California paid sick leave if they have accrued time available. Employees can also take family and medical leave under CFRA to care for themselves or their family members if their symptoms rise to the level of a serious health condition. Leave under CFRA is unpaid but employees may qualify for disability insurance from the state.
Regular Rate Blues: California Supreme Court’s Decision on Premium Payments and Other Pay Practice Reminders
On July 15, 2021, the California Supreme Court decided in Ferra v. Loews Hollywood Hotel, LLC 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 the employee’s base hourly rate, as many employers were doing. The ruling is retroactive, and employers should audit their practices to determine if a true-up payment is necessary.
Under California wage and hour laws, an employer must provide and permit nonexempt employees who work more than five hours in a day an unpaid duty-free meal period of at least 30 minutes in length starting no later than the end of the fifth hour of work. Employees who work no more than six hours in a day may waive the meal period upon written agreement between the company and the employee. In addition, nonexempt employees who work at least three and one-half hours in a day must be provided and permitted a paid 10-minute duty-free rest period for every four hours of work or major fraction thereof, and a second rest period if working up to six hours a day. Employees who work outdoors are entitled to cool-down recovery periods in fixed, shaded areas whenever needed to prevent heat illness.
If an employer doesn’t provide compliant meal, rest, or recovery periods, the employer must pay the employee one additional hour of pay as a “premium” for each workday that the meal, rest or recovery period was not provided. (Labor Code § 226.7.) Before the recent ruling, it was unclear whether this premium should be paid at the employee’s base hourly rate or their “regular rate of pay” which includes all nondiscretionary incentive payments such as bonuses and commissions. The Court settled this issue: the premium must be paid at the regular rate of pay, not the base rate. This is bad news for employers that acted in good faith by paying premium pay at the base hourly rate.
How To Calculate “Regular Rate of Pay”
Regular rate calculation requires employers to include all compensation for hours worked and divide that number by the total hours worked. “All compensation” includes hourly wages, nondiscretionary bonuses, shift differentials, on-call pay, and commissions. In general, most bonuses are considered nondiscretionary and include any bonus that employees know about and expect such as: production bonuses, bonuses for quality of work, bonuses to induce employees to work more efficiently, attendance bonuses, and safety bonuses. Thus, if nonexempt employees are paid a commission, non-discretionary bonus, or other incentive payment, such payment must be factored into the employees’ regular rate in order to compute any applicable overtime or break premium compensation.
Different Rule for Flat Sum Bonus: Note that California law requires the use of a different rule for calculating “regular rate of pay” when employees earn a non-discretionary, flat sum bonus. A flat sum bonus is typically a bonus paid for working a shift that is not tied to any measure of production or efficiency, for example a flat sum bonus for working on a weekend. When calculating the regular rate of pay from a flat sum bonus, the bonus is divided by only the regular, non-overtime hours worked in the workweek instead of all hours.
For examples showing regular rate calculations you can review the Labor Commissioner’s website here.
When To Use Regular Rate
The regular rate of pay is used when calculating overtime, California paid sick leave (see sick leave section below) and now meal and rest pay premiums.
Overtime “True Up” Calculations
If the employees’ bonus or commission is paid out on a weekly basis, the calculation is simple and the additional pay is added to all other wages earned in the workweek and then divided by the total hours worked in that workweek to come up with the regular rate. However, the majority of bonuses and commissions are not paid on a weekly basis and are more often earned and calculated on a monthly or quarterly basis.
If employees earn nondiscretionary bonuses or commissions on a monthly, quarterly, or other non-weekly basis, the amount of the bonus or commission earned must be spread out over the period it was earned by the employee for purposes of the overtime calculation. Employers must apportion the bonus or commission payments to each workweek during the period the amount was earned on a pro rata basis. Once that is done, employers must then recalculate any additional overtime amounts that may be owed over the period the bonus or commissions was earned, and “true up” the amount by paying the employee the difference.
The true up process for overtime or premium payments should be done whenever the bonus or commission payments are made to employees. Any additional overtime or premium amount owed to employees should be paid at the same time as the bonus or commission or in the following pay period. If you have questions regarding the method of calculating the regular rate or “truing up” payments, you should work with legal counsel to ensure employees are being compensated appropriately.
Paid Sick Leave Pay for Hourly Employees Is Also Regular Rate
An often-overlooked provision of California’s paid sick leave law is that the rate of pay for paid sick leave for hourly (non-exempt) employees is also the regular rate, not the straight hourly rate of employees. This is different than how an employer usually pays vacation or PTO time, so it can often slip by even the most seasoned of HR professionals and payroll personnel.
Nonexempt employees must be paid their regular non-overtime hourly rate for the amount of time taken as paid sick leave. To determine the rate of pay for nonexempt employees taking sick leave, the employer may either:
- Calculate the regular rate of pay for the workweek in which the employee used paid sick leave, whether or not they actually worked overtime in that workweek (see above; this is calculated like the “flat sum” bonus), or
- Divide your total compensation for the previous 90 days (excluding overtime premium pay) by the total number of non-overtime hours worked in the full pay periods of the prior 90 days of employment
For exempt employees, paid sick leave is calculated in the same manner the employer calculates wages for other forms of paid leave time (for example, vacation pay or PTO).
This is a good time for employers to review their pay practices and contact their legal counsel to determine what, if any, corrections should be made. Because the ruling is retroactive, there may be an increase in litigation surrounding meal and rest breaks. It is important to be proactive in evaluating risk.
Top Three Tips for Employers in Implementing Remote Work Policies
The COVID-19 pandemic has created many challenges and changes in the workplace, with one of the biggest changes being the increase in remote work for employees. As the economy reopens this year, employers are now able to bring employees safely back to the workplace. However, many employers are also exploring flexible work arrangements that allow their employees to continue to work remotely.
Implementing a remote work policy can be a benefit to employers in retaining employees by allowing flexibility in their schedules and may also help attract new employees that would not otherwise live close enough to the employer’s workplace. Here are three tips employers should follow when implementing a remote work policy for their workplace.
1) Create a written policy for remote work. Having all or part of your workforce working remotely presents new challenges for both employers and employees, thus it is important to lay out the policy clearly in writing. A remote work policy should clearly state which employees are eligible for remote work (and any employees that are not eligible) and the requirements for working remotely, including the ability to still meet the essential functions of the position. Employers can implement a general work from home policy that allows employees to voluntarily work from home when it is necessary for the employee’s convenience. Alternatively, employers can approve remote work arrangements with employees on an individual basis that allow employees to work remotely either full or part time, in which case the employer should enter into a separate remote work agreement with each employee. Either way, the policies should be signed by employees to acknowledge receipt and should include a statement that the employer has the right to revoke the remote work option at any time.
2) Comply with all labor laws for non-exempt employees working remotely. Remote work for non-exempt employees can pose challenges for employers in ensuring that hours worked are tracked properly, all overtime is paid, and adequate meal and rest breaks are provided. Employees must track their time, including meal and rest breaks, as accurately as possible when working remotely just as they would in the workplace. Employers should be clear about the working hours for non-exempt employees to ensure they are not working off the clock. Policies requiring pre-approval for overtime should also be reiterated in the remote work policy. Working hours and breaks can be difficult to track when employees are not present at the worksite, thus it is important to layout the requirements in writing and set up a system of communication with your remote employees.
3) Reimburse employees business expenses where required. Under California law, employers must reasonably reimburse workers for all “necessary” business expenses incurred by the employee in carrying out their job duties. If the remote work policy is voluntary and employees have a designated office at the workplace that they can use anytime, their expenses for remote work will likely not need to be reimbursed since the remote work is voluntary and not “necessary.” However, during the pandemic most employees were required to work remotely and it became necessary for their job. If employees are still required to work remotely under an employer’s policy, employers must reimburse employees for expenses incurred in working remotely including paying all or part of their cell phone and internet bills, providing or paying for office supplies, and even paying for necessary office furniture.
Employers should work with legal counsel to ensure their remote work policies are compliant.
U.S. Supreme Court Rules Against Union Access to Agricultural Employer’s Land
On June 23, the U.S. Supreme Court held that a California regulation allowing union organizers to enter an agricultural employer’s property is unconstitutional. The regulation, on the books since the mid-1970s, requires farms to permit unions to speak with and recruit farmworkers in the hour before and after work and an hour during lunchtime for up to 120 days each year. (Cedar Point Nursery v. Hassid (U.S., June 23, 2021, No. 20-107) 2021 WL 2557070.)
In the case, a strawberry plant nursery and a fruit shipment company sued the California Agricultural Labor Relations Board arguing that the regulation gave farmworker unions an easement to enter and conduct business on their land without authorization or compensation. The Court agreed, holding that the regulation took away the agricultural employer’s right to exclude trespassers from its private property, amounting to a “taking” of company property without “just compensation” in violation of the Fifth Amendment.
With the regulation essentially gone (barring the unlikely scenario that the government or the unions decide to pay farms for access to their workers), labor unions will have to find alternative means to communicate with and recruit agricultural union members. This ruling is hailed as a resounding victory for agricultural employers. For more information about this contact Sarah Hirschfeld-Sussman or anyone on DP&F’s employment team.
Regulating Social Media in the Workplace
The proliferation of social media creates new and difficult situations for employers. Many employers wonder to what extent they can regulate their employee’s social media activities or legally take an employment action based on an employee’s off-duty conduct.
For better or worse, most of us carry smart phones with the capacity to text, email, comment, and upload photos and videos instantaneously. Platforms like Facebook, Twitter, Instagram and YouTube allow us to easily share our personal, and potentially controversial, opinions publicly. In addition, our viewpoints or activities can easily be disseminated by others. Take, for example, an employee is recorded saying something offensive outside of work and the video is published on someone else’s social media account.
Navigating these situations is not simple. While the First Amendment’s right to free speech generally does not apply to actions taken by private employers, there are other privacy laws in California that do. For example, the California Constitution, at Article I, Section 1, gives every citizen a right to privacy, and California Labor Code Section 980 prohibits employers from asking employees for their social media log-ins and passwords or asking them to access their social media accounts on demand. However, depending on the circumstances, once an employee publishes on social media, the right to privacy may be considered waived.
California law, found at Labor Code Section 96(k), protects employees’ rights to engage in lawful off-duty conduct, and provides remedies when employment is adversely affected in violation of these laws. However, off-duty conduct that harms or potentially harms the employer’s business interests or involves a crime may be a valid basis for an employment decision. Since these are tricky situations, the individual facts must be considered and an employer may want to consult with legal counsel before taking action.
We recommend employers adopt a standard policy to handle these situations. Below are some guidelines to keep in mind when adopting a social media policy.
What Employers Can Regulate
Employers can restrict an employee’s social media behavior in the following ways:
- Use of personal social media during work time or on the employer’s equipment (company computers, phones)
- Use of the employer’s name, logos, brand names, slogans or trademarks and appearing to speak on behalf of the employer
- Communications about confidential or proprietary employer information including non-public information that may be valuable to competitors, such as client lists, product information, and pricing
- Posts about co-workers, supervisors, or the employer, competitors or suppliers that are vulgar, obscene, threatening, harassing, libelous, or discriminatory based on a protected class (but be careful about regulating negative posts made in the context of discussing terms and conditions of employment protected by the National Labor Relations Act, discussed below)
- If the employee chooses to identify themselves as an employee of the employer on any social media network, you can require them to state in clear terms that the views expressed on the social media network are theirs alone and that they do not necessarily reflect the views of the company
- Unlawful conduct, even when it occurs off-duty
What Employers Can’t Regulate
Employers should not prohibit or restrict the following:
- An employee’s communications about wages, hours, or other terms and conditions of their employment as these may be protected under the National Labor Relations Act
- Disclosure of facts related to sexual harassment in the workplace, as these may be protected depending on the circumstances
- An employee’s communications about their political beliefs, political associations or affiliations, engaging or participating in politics, and/or becoming candidates for public office
Before taking any adverse action against an employee based on a social media post or other off-duty conduct, employers should consider the following:
- Does the activity negatively affect the employer’s business? How?
- Does the activity violate the employer’s social media policy?
- Is the employer enforcing the policy uniformly? For example, have other employees posted similar content or about similar topics without being disciplined?
- Can the employer legally take action, or is the activity in question protected under the law? Consult legal counsel if you have any doubts.
- How did the employer learn of the posting or conduct? Did they learn in a way that could be considered an invasion of privacy?
- How will taking action affect employee morale?
- How will the action be perceived by the employer’s customers, community and the public if it is publicized?
Taking action based on an employee’s off-duty conduct or social media activity can be challenging for employers, and there are many factors to consider. Employers should think about the legal risks involved and adopt a legally compliant policy. As always, we recommend employers work with legal counsel when handling these sensitive issues.
Governor Newsom Signs New Employee Recall Law (SB-93) – Effective Immediately
SB-93 was signed by Governor Newsom on April 16, 2021 and is effective immediately. The new law requires certain employers to recall eligible workers who were laid-off for reasons related to COVID-19 if their prior positions become available. Here are the key parts of the law employers need to know:
- Covered Employers: SB-93 only applies to employers who operate an “enterprise,” which is defined as a “hotel, private club, event center, airport hospitality operation, airport service provider, or the provision of building service to office, retail, or other commercial buildings” regardless of the number of employees.
- Hotel means a building offering overnight lodging to the public with 50 or more guest rooms, or suites of rooms.
- Private club means a membership-based business that operates a building with 50 or more guest rooms, or suites of rooms, for overnight lodging for members.
- Building service means janitorial, building maintenance, or security services for office, retail, or other commercial buildings.
- Laid-Off Employees: Laid-off employees are eligible to be offered employment if they were: (1) employed for six months or more from January 1, 2019 to January 1, 2020, full-time or part-time; and (2) most recently separated from active service due to a “reason related to the COVID-19 pandemic.” Reasons related to COVID-19 include: a public health directive, government shutdown order, lack of business, a reduction in force, or other economic, non-disciplinary reason due to the COVID-19 pandemic.
- Requirements: Covered employers must offer laid-off employees open positions that (1) become available after April 16, 2021, and (2) are the same or similar to the laid-off employee’s position at the time of the employee’s most recent layoff. Employers must make an offer within five business days of establishing the position, and give the employee five business days to accept or decline the offer.
- The offer must be made in writing and delivered in person or by mail to the employee’s last known address, and by email and text message if the employer has that contact information.
- If more than one laid-off employee qualifies for a position, the employer must offer the position to the employee with the longest length of service, which is the total of all periods the employee worked for employer since their hire date including time when they were on leave or vacation.
- If the laid-off employee is not qualified for the open position, the employer must provide written notice within 30 days stating the length of service of the individual who was hired and the reasons for the employer’s decision not to hire the laid-off employee.
- Record Retention: For each laid-off employee, employers must maintain the following records for three years from the date of the written notice of layoff:
- The employee’s full legal name
- The employee’s job classification at the time of separation from employment
- The employee’s date of hire
- The employee’s last known residential address
- The employee’s last known email address
- The employee’s last known telephone number
- A copy of written layoff notices provided to the employee, and
- All records of communications between the employer and the laid-off employee concerning offers of employment made pursuant to SB-93
The law allows laid off employees to file a complaint with the Division of Labor Standards Enforcement (“DLSE”) for violations of SB-93, and employers who violate the provisions of the law may be subject to penalties. The full text of the law can be found here.
Employer Focused Summary of American Rescue Plan Act and California COVID-19 Supplemental Paid Sick Leave Act
The American Rescue Plan passed and signed into law by President Biden on March 11, 2021 extends and resets the FFCRA after its expiration on March 31. The extension and reset goes into effect on April 1 through September 30, 2021.
In addition, Governor Newsom signed a new COVID-19 Supplemental Paid Sick Leave Act (SB-95) into law this past Friday, March 19 which is retroactive to January 1, 2021 and extends through September 30, 2021.
The relevant portions of the two laws are summarized below.
Federal: American Rescue Plan Act (“ARPA”)
- <500 Employees: The provisions of the ARPA only apply to employers with less than 500 employees.
- Additional Leave as of April 1: Amount of FFCRA leave available is reset to up to 80 hours (10 days) of emergency paid sick leave (“EPSL”) and up to 12 weeks of emergency FMLA leave (“EFMLA”).
- Leave taken prior to April 1 will not count toward the reset cap
- Providing Leave Not Required: Employers are not required to provide paid leave, but if they choose to they will receive payroll tax credits for doing so until September 30, 2021.
- New Qualifying Reasons for Leave: ARPA expands the qualifying reasons for taking leave under both the EPSL and EFMLA to include:
- Seeking or awaiting results of COVID-19 test after an exposure or at an employer’s request;
- Vaccination appointments;
- Conditions or complications related to receiving the COVID-19 vaccine.
- Changes to Paid Leave for EFMLA: ARPA expands the amount of paid leave available under the EFMLA as follows:
- Eliminates the requirement that the first 10 days of EFMLA is unpaid;
- Increases the total tax credit cap for EFMLA from $10,000 to $12,000 per employee.
- Additional Qualifying Reasons and Pay for both EPSL and EFMLA: Under the ARPA, both EPSL and EFMLA can be taken for the following qualifying reasons (in addition to the new reasons listed above). Note that this is an expansion of the EFMLA leave, which was previously only allowed for childcare purposes.
- Additional Qualifying Reasons and Pay for both EPSL and EFMLA: Under the ARPA, both EPSL and EFMLA can be taken for the following qualifying reasons (in addition to the new reasons listed above). Note that this is an expansion of the EFMLA leave, which was previously only allowed for childcare purposes.
- Qualifying Reasons Related to the Employee’s Own Health:
- Subject to quarantine or isolation order due to COVID-19;
- Advised to self-quarantine by heath care provider due to COVID-19;
- Experiencing symptoms of COVID-19 and seeking medical diagnosis.
- Under the EPSL this is paid at the employee’s regular rate of pay, up to $511/day (capped at $5,110) total; under the EFMLA it is limited to 2/3 of the employee’s regular rate of pay, up to $200/day (capped at $12,000 total)
- Qualifying Reasons Related to Employee’s Need to Care for others:
- Caring for a family member who is subject to quarantine, or has been advised to self-quarantine;
- Caring for a child whose school or child care is closed due to COVID-19.
- Under both EPSL and EFMLA this is paid at 2/3 employee’s regular rate of pay, up to $200 per day.
- Qualifying Reasons Related to the Employee’s Own Health:
- New Non-Discrimination Rule: The new law prohibits the tax credit for employers that discriminate in giving FFCRA paid leave by favoring highly compensated employees, full-time employees, or employees on the basis of tenure with the employer. If employers do not make FFCRA paid leave available to all employees without respect to their compensation level, job category or seniority, they could be denied the tax credit.
California: SB-95 – COVID-19 Supplemental Sick Leave
- 26+ Employees: The law requires employers with 26 or more employees to provide supplemental paid sick leave for COVID-19 reasons. The law does not apply to employers with 25 or fewer employees, however these employers are covered under the federal ARPA discussed above. Employers with 500+ employees will be covered by SB-95 and not by the federal ARPA.
- Retroactive to January 1 and through September 30: The requirement to provide the paid sick leave will take effect on March 29 (10 days after law enacted), at which point it will be retroactive to January 1, and extend until September 30, 2021. This means that if you did not provide paid sick leave for qualifying reasons as of January 1, but instead provided unpaid leave, you will need to provide pay for that leave retroactively by the next full pay period to comply with this law (note that you may qualify for FFCRA tax credits for doing so).
- Reasons for Leave: Employers must provide supplemental paid sick leave for employees that are unable to work or telework due to any of the following reasons:
- Subject to quarantine or isolation order or guidelines due to COVID-19;
- Advised to self-quarantine by heath care provider;
- Attending vaccine appointment;
- Experiencing symptoms of COVID-19 and seeking medical diagnosis;
- Caring for a family member who is subject to quarantine, or has been advised to self-quarantine;
- Caring for a child whose school or child care is closed or unavailable due to COVID-19.
- Amount of Leave: Full-time employees (work at least 40 hours per week on average) are entitled to 80 hours of supplemental paid sick leave. Other employees are entitled to the average amount of hours they normally work over a 14-day period.
- Amount of Pay: Employees get their regular pay during leave, up to a maximum of $511 per day, and $5,110 total.
- Separate from Sick Leave on Wage Statement: The COVID-19 Supplemental Paid Sick Leave is a separate entitlement from other paid sick leave provided by the employer, and must be listed separately on the written notice or wage statement provided to employees.
- Model Notice Forthcoming: The Labor Commissioner shall make a model notice available by the end of this week that employers can send to employees.
If you have questions or need further information please feel free to reach out to DP&F’s Employment Team, Jennifer Douglas, Marissa Buck and Sarah Hirschfeld-Sussman. This post is provided for general informational purposes only and should not be construed as legal advice. The various governmental agencies tasked with enforcing these laws will likely publish FAQs addressing some of the uncertainties that may develop as to how these laws will work in practice. We encourage you to check with those agencies frequently for regulatory guidance.
Employer Obligations for Heat Illness Prevention during Harvest
This weekend, the weather forecasters predict temperatures in Napa County will reach 108 degrees with parts of Sonoma County and Mendocino County topping 112 degrees. Even in the early hours, agricultural laborers working harvest may be exposed to high heat conditions. What follows is a quick refresher for those employers with outside work areas on their legal obligations for heat illness prevention. We encourage all employers to “over-deliver” when appropriate on these standards.
The Cal/OSHA regulations require employers to:
1. Provide fresh water.
Employers must provide employees with fresh, pure, and suitably cool water, free of charge. Enough water must be provided for each employee to drink at least one quart, or four 8-ounce glasses, per hour and the water must be located as close as practicable to the work area. Employers are also required to encourage employees to drink water frequently
2. Provide access to shade.
When temperatures exceed 80 degrees, employees must be provided shade at all times in an area that is ventilated, cooled, or open to air and that is as close as practicable to the work area. There must be sufficient space provided in the shade to accommodate all employees taking rest. When temperatures do not exceed 80 degrees, employees must be provided timely access to shade upon request. Employees should be allowed and encouraged to take preventative cool-down rest as needed, for at least 5 minutes per rest needed.
3. Have high heat procedures in place.
High heat procedures are required of agricultural employers when temperatures exceed 95 degrees. The procedures must provide for the maintenance of effective communication with supervisors at all times, observance of employees for symptoms of heat illness, procedures for calling for emergency medical services, reminders for employees to drink water, pre-shift meetings to review heat procedures and the encouragement of employees to drink plenty of water and take preventative cool-down rest as needed.
Agricultural employers must additionally ensure employees take, at a minimum, one 10-minute preventative cool-down rest period every two hours in periods of high heat.
4. Allow for acclimatization.
New employees or those newly assigned to a high heat area must be closely observed for the first 14 days of their assignment. All employees must be observed for signs of heat illness during heat waves. A “heat wave” is any day where the temperature predicted is at least 80 degrees and 10 degrees higher than the average high daily temperature the preceding 5 days.
5. Train all employees regarding heat illness prevention.
Employees must be trained regarding the risk factors of heat illness and the employers’ procedures and obligations for complying with the Cal/OSHA requirements for heat illness prevention. Supervisors must additionally be trained regarding their obligations under the heat illness prevention plan and how to monitor weather reports and how to respond to heat warnings.
6. Have emergency response procedures.
Employers must have sufficient emergency response procedures to ensure employees exhibiting signs of heat illness are monitored and emergency medical services are called if necessary.
7. Have a Heat Illness Prevention Plan.
Employers must have a written heat illness prevention plan that includes, at a minimum, the procedures for access to shade and water, high heat procedures, emergency response procedures, and acclimatization methods and procedures.
2014 Wage and Hour Update
DP&F’s co-managing partner, Greg Walsh, presented on current employment law issues to members of the Napa/Sonoma Chapter of Women for Wine Sense, an organization for wine industry professionals and enthusiasts.