On November 20, 2020, the California Occupational Safety and Health Standard Board adopted temporary regulations regarding measures that employers must undertake in order to prevent the spread of COVID-19 in the workplace.  On November 30, those regulations went into effect and are set to be in place for at least 180 days.  California employers must

California Assembly Bill 1867 (signed by California Governor Gavin Newsom on September 9, 2020) and Senate Bill 1383 (signed on September 17, 2020) significantly expand the rights of California employees to both paid and unpaid leave.  In addition, and especially as they relate to Senate Bill 1383, these laws will require California employers to promptly

Last year, California Governor Gavin Newsom signed Assembly Bill (“AB”) 5, which signaled a seismic shift in the way California employers classify workers as either independent contractors or employees.  On September 4, 2020, Governor Newsom signed AB 2257, which modifies (slightly) some of the rules and provisions of AB 5.

To recap, AB 5 codified the California Supreme Court’s decision in Dynamex.  In Dynamex, the Supreme Court rejected the multifactor test set forth in S.G. Borello & Songs, Inc. v. Department of Industrial Relations for classifying workers and announced a new, more objective standard for determining worker classification for the purposes of the California wage orders.  Under this new standard, the burden is on the hiring entity to establish that the worker is an independent contractor who was not intended to be included within the coverage of the California wage orders.  In order to satisfy this burden, the hiring entity must establish all of the following:  (1) that the worker is free from the control and direction of the hiring entity in connection with the performance of work, (2) that the worker performs work that is outside the usual course of the hiring entity’s business, and (3) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed.
Continue Reading California Modifies the ABC Test – But It Doesn’t Really Help

On April 16, 2020, California Governor Gavin Newsom issued Executive Order N-51-20 (the “Order”). Similar to laws recently enacted by local California jurisdictions, the Order entitles certain workers to paid leave for reasons related to COVID-19 who are otherwise ineligible for such paid leave under the Families First Coronavirus Response Act (“FFCRA”).

As discussed here, FFCRA requires employers to provide employees with up to 80 hours of paid leave for reasons related to COVID-19. Notably, however, FFCRA excludes from its scope employees working for employers with 500 or more employees.

Since FFCRA’s enactment, numerous local jurisdictions have passed ordinances attempting to fill the gap left by FFCRA by requiring employers with 500 or more employees to provide paid leave for reasons related to COVID-19. This includes the cities of San Francisco, San Jose, and Los Angeles.

While similar to those ordinances, the Order issued by Governor Newsom is different in that it applies to “Food Sector Workers” and “Hiring Entities.” Specifically, it provides that Hiring Entities are required to provide Food Sector Workers with up to 80 hours of paid sick leave (“COVID-19 Supplemental Paid Sick Leave”) to the extent the workers are unable to work for any of the following reasons:

  • They are subject to a federal, state, or local quarantine or isolation order related to COVID-19;
  • They are advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19; or
  • They are prohibited from working by the Food Sector Worker’s Hiring Entity due to health concerns related to the potential transmission of COVID-19.

Continue Reading California Continues to Fill in the Gaps Left by the Families First Coronavirus Response Act

California is like every other state in that it does not require employers to provide employees with paid time off.  Unlike in most other states, however, if an employer does provide employees with paid time off, then employees have a vested right in such time.  What this means is that employers are prohibited from enacting “use it or lose it” paid time off policies.  It also means that upon separation, California employers must pay out employees for any unused paid time off.

Due to these requirements, and to remain competitive with other employers, some employers have instituted “unlimited” paid time off policies whereby employees do not accrue any specific amount of vacation time but, rather, are free to take (or not take) as much (or as little) vacation as they want.  The commonly held belief amongst most employers is that such unlimited paid time off policies benefit employees by providing them with flexible schedules while, at the same time, allowing employers to avoid the obligation to pay out any unused paid time off upon separation.  In McPherson v. EF Intercultural Foundation (McPherson), the California Court of Appeal issued a shot across the bow to employers adhering to this commonly held belief by holding that the unlimited paid time off policy at issue did obligate the employer to pay out unused paid time off upon termination.
Continue Reading California Court of Appeal Issues Warning to Employers with Unlimited Paid Time Off Policies

Assembly Bill 51 (“AB 51”) prohibits employers from requiring employees to execute arbitration agreements as a condition of employment.  After being signed by California Governor Gavin Newsom on October 10, 2019, AB 51 was set to go into effect on January 1, 2020; however, on December 30, 2019, the Honorable Kimberly J. Mueller, Chief Judge

Employees at work

From the California Supreme Court’s landmark decision in Dynamex to the passage of dozens of new employment laws, 2019 was an important year for California employers.  While some of these new laws were discussed here, this blog discusses some additional laws (there are a lot) and provides some updates on legal challenges to AB 5 and AB 51.

  • Pursuant to previously enacted laws, on January 1, 2020 California’s annual minimum wage increased to $13 per hour ($12 per hour for employees with 25 or fewer employees).
  • SB 778 clarifies California employers’ duties to provide harassment training to employees. Pursuant to previously enacted SB 1343, employers had a duty to provide harassment training to both supervisory and nonsupervisory employees once every two years.  SB 778 extends the initial deadline for providing new training to employees from January 1, 2020 to January 1, 2021.  It also clarifies that employees who completed harassment training in 2019 do not need to retrained for another two years and then every two years thereafter.

Continue Reading 2019: A Year to Forget for California Employers

On September 18, 2019, California Governor Gavin Newsom signed Assembly Bill (“AB”) 5, thereby codifying the California Supreme Court’s landmark decision in Dynamex Operations West, Inc. v. Lee.  This represents the culmination of a seismic shift in California employment law that began a little over a year ago.

To refresh, starting in 1989, the leading test in California for distinguishing employees and independent contractors was the multifactor standard set forth in S.G. Borello & Songs, Inc. v. Department of Industrial Relations.  Under Borello, the key question was whether the employer “[had] the right to control the manner and means of accomplishing the result desired.”  In addition to this factor, the Borello test also endorsed multiple “secondary” indicia in analyzing and determining the employment relationship.

In April 2018, the California Supreme Court issued its decision in Dynamex.  In Dynamex, the Court announced a new, more objective standard for determining worker classification for the purposes of the California wage orders.  Under this new standard, the burden is on the hiring entity to establish that the worker is an independent contractor who was not intended to be included within the coverage of the California wage orders.  In order to satisfy this burden, the hiring entity must establish all of the following:  (1) that the worker is free from the control and direction of the hiring entity in connection with the performance of work, (2) that the worker performs work that is outside the usual course of the hiring entity’s business, and (3) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed.
Continue Reading California Codifies Dynamex – Now What?

On Tuesday, August 20, the Ninth Circuit Court of Appeals in a case entitled Murray v. Mayo Clinic, joined four other Circuit Courts of Appeal in holding that a “but for” causation standard applies in ADA discrimination claims.  This standard is considered to make it more difficult for employees to prove discrimination claims than