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On February 10, 2022, the Senate passed the Ending Forced Arbitration of Sexual Assault and Sexual harassment Act of 2021 (HR. 4445). When signed by President Biden (expected any day), it will amend the Federal Arbitration Act (FAA) to bar forced pre-dispute arbitration of workplace sexual assault and sexual harassment claims. The law will also bar waivers by employees of the right to bring such claims on a class basis.
The new law also requires that a court—not an arbitrator—decide whether a claim constitutes sexual harassment or sexual assault, even if the arbitration agreement requires such decision be made by the arbitrator.
In light of this development, we suggest employers who require employees to sign mandatory arbitration agreements include a “carve-out” for claims of workplace sexual assault or harassment. At a minimum, any arbitration agreement should contain a carve-out for disputes that are barred by applicable federal or state law.
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On February 9, 2022, Governor Newsom signed Senate Bill (SB) 114 which resurrects COVID-19 Supplemental Paid Sick Leave (the “SPSL”) for 2022.
This version of SPSL took effect February 19, 2022, however, it applies retroactively to January 1, 2022. It expires September 30, 2022. Employers with more than 25 employees are covered.
The following are covered reasons for using SPSL:
SPSL benefits:
Additional Facts About SPSL:
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Just before Christmas, a California appeals court gave the green light to a wrongful death lawsuit claiming that an employee brought Covid-19 home from work and infected a family member, who subsequently died.
The employer, See’s Candy, had asked the courts to shut the case down because the claim falls under the exclusive remedy of the California Workers’ Compensation Act (WCA). Under the WCA, employees who suffer illness from the workplace are entitled to compensation without needing to sue the employer in court. Since early in the Covid-19 pandemic, it has been clear that employees who link their own Covid-19 infection to their job get WCA benefits.
The courts refused to dismiss the case, reasoning that WCA benefits do not extend to injuries or illness by non-employees, and so they are not prohibited from pursuing the employer in civil court.
Importantly, the family still faces several hurdles, including establishing that the employer owed a “duty of care”* to the employee’s relative (a question not answered in the See’s Candy opinion), that the employer breached such a “duty of care,” and, perhaps most difficult, that the employer was the source of the deceased relative’s infection.
Employers’ best takeaway from this case is to ensure your practices align with all state and federal government and OSHA mandates (such as those discussed above). This will not only reduce the spread of infection, but may be valuable evidence, if you are confronted with such a case, to prove you did not act unreasonably.
*Deepest apologies for the unavoidable legalese.
Senate Bill (SB) 331, signed into law, expands that prohibition to include allegations of other acts of workplace harassment or discrimination that are not based on sex. The law applies to agreements signed on or after January 1, 2022.
| A California appellate court has issued an opinion, All of Us or None v. Hamrick, which will almost certainly delay the process of obtaining criminal background checks for employers. Criminal background searches are a legal requirement for employers in many industries.Companies performing background checks rely, in part, on searches of criminal case indexes using date of birth and driver’s license number.
In All of Us or None v. Hamrick, a civil rights organization supporting ex-offenders sued the Riverside Superior Court claiming it permitted searches using dates of birth and driver’s license numbers, in violation of California Rule of Court, Rule 2.507. The trial court threw the case out. But the California Court of Appeal reversed, emphasizing the privacy interests of ex-offenders. While the case was brought against the Riverside Court, it will impact searches of most courts because CRC Rule 2.507 is a statewide law. |
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Sadly, COVID-19 remains with us. In an ongoing effort to control the spread of the virus, our state and federal governments continue to push forward regulations and policies guaranteed to impact the workplace. Here are some important developments:
School Workers Must Prove Vaccination or Weekly COVID-19 TestingOn August 11, 2021, the state of California ordered all workers in public and private K-12 schools to show proof of vaccination. Workers unable to show proof of vaccination must undergo weekly PCR or antigen testing for COVID-19. Schools with unvaccinated workers should develop a plan to track testing results and conduct contact tracing. Results must be submitted to local public health departments. Covered schools have until October 15, 2021 to comply with requirements.
Nursing Homes Mandate Staff Vaccinations or Face Federal Funding LossOn August 18, 2021, President Biden directed the Department of Health and Human Services to require nursing homes to require all employees be vaccinated against COVID-19 or face possible loss of Medicare and Medicaid funding. There is presently no deadline for compliance. However, any California nursing home that has not already mandated employee vaccination in compliance with the California Department of Public Health’s August 5th order that all health care workers to be vaccinated by September 30, 2021, should ensure compliance.
California Legislature Contemplates Statewide Workplace Vaccine MandateRumors out of Sacramento suggest the California legislature is contemplating a statewide mandate that all employers require employees in every industry to be vaccinated against COVID-19 or undergo weekly testing. If such legislation comes to fruition, California would lead the nation in workplace vaccine mandates.
Importantly, there is no draft bill and any legislation would need to clear hurdles, including possible resistance from business interests, and may hinge on the outcome of the election to recall Gov. Newsom.
Cal/OSHA Encourages Masking Indoors Regardless of Vaccination StatusIn an August 25th press release, Cal/OSHA said, “as a best practice, Cal/OSHA encourages employers and workers to follow the recent update from the [California Department of Public Health] recommending that all individuals wear face coverings while indoors regardless of vaccination status.”
This is a recommendation only and the election by employers not to require vaccinated workers to wear masks will not expose them to Cal/OSHA penalties. This could change and we will continue to monitor the situation. Additionally, a California Department of Public Health Guidance published on July 28, 2021, requires masks “for unvaccinated individuals in indoor public settings and businesses (examples: retail, restaurants, theaters, family entertainment centers, meetings, state and local government offices serving the public).” Exceptions to this broad mandate apply.
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On July 15, 2021, the California Supreme Court, in Ferra v. Loews Hollywood Hotel, LLC, clarified the rule for calculating the premium required when employees are unable, because of workload, to take a timely rest or meal period. Given the potential for employees to sue employers in class actions for failing to strictly comply with this rule, and the fact that the holding applies retroactively, this is a significant development.
By way of background, California employers are required to provide nonexempt employees a paid 10-minute rest period for every 4-hours of work, and an unpaid 30-minute uninterrupted meal period by the end of the 5th hour (and 10th hour, if applicable) of work. These rules should already be quite familiar to employers.
The California legislature recognizes this is not always possible due to an employee’s workload or other issues. Therefore, an employee who is not provided required rest and/or meal periods must be paid an additional hour of pay at the employee’s “regular rate of compensation” for every missed meal or rest period. Until the Ferra decision, this “regular rate of compensation” was simply a worker’s hourly wage, without regard to additional, non-discretionary payments, such as bonuses or shift differentials.
In Ferra, the Court held the opposite, that meal or rest period premiums must be paid at a rate of pay that reflects regular pay + incentives, such as non-discretionary bonuses or shift differentials. Calculating this “regular rate of compensation” for rest and meal period premiums now mirrors the formula previously applied to determine the “regular rate of pay” when calculating overtime premium pay.
If an employee is indeed paid non-discretionary bonus or incentive pay, the calculation of his or her “regular rate of compensation” can initially seem somewhat daunting. Consider an employee who earns $17/hr, but also receives an additional $3/hr shift differential when she works a night shift. In a particular week, she works 60 hours (40 regular hours, 13 overtime hours and 5 double time hours). Of those 60 hours, 30 are paid at the employee’s base rate of $17, and the remaining 30 hours are paid at $20/hr to reflect the $3 night shift differential.
Under the old rule, any rest or meal period premium would be paid at the employee’s base pay, $17. However, under the Ferra holding, an additional calculation must be conducted, which establishes the rest or meal period premium must be paid at the weighted average rate of $18.50. (Total compensation is $1,110, divided by 50 hours, equals the weighted average rate of $18.50; this is her “regular rate of compensation” for that week only.)
Given this development, what should employers do? We recommend the following:
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Many California wage-hour lawsuits include a claim that employees’ wage statements (pay stubs) fail to comply with the law. By way of reminder, each wage statement must contain:
Additionally, the Labor Code also requires the check be drawn on a bank with at least one branch in California, and the check must state the name and address of a business in California where the check can be cashed on demand without a discount
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The Law Offices of Alex Craigie is excited to announce that Alex Craigie has been selected by Thomson Reuters for inclusion in the 2022 Southern California SuperLawyers for Employment Litigation.
Super Lawyers selects attorneys using a multiphase selection process. Peer nominations and evaluations are combined with independent research. Each candidate is evaluated on 12 indicators of peer recognition and professional achievement. Selections are made on an annual, state-by-state basis. The objective is to create a credible, comprehensive and diverse listing of outstanding attorneys that can be used as a resource for attorneys and consumers searching for legal counsel. Only 5% of attorneys in Southern California receive this distinction.
Alex Craigie is a trial lawyer recognized for his innovative, cost-effective and, where necessary, highly aggressive approach to Employment dispute advocacy. After 10 years as a Partner at a leading national law firm, Alex launched his own practice in 2014 with the aim of using the skills and experience he gained representing Fortune 500 companies in high-stakes lawsuits throughout the nation, to represent clients exclusively in Employment Law throughout California.
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On June 17th, the California Division of Occupational Safety and Heath (Cal/OSHA) adopted a revised set of proposed revisions to the COVID-19 Prevention Emergency Temporary Standards. They took effect immediately.
Here are the major changes in the revised regulations:
Testing and Quarantine. Fully vaccinated employees do not need to be tested or quarantined following close contact with COVID-19 cases, unless they exhibit symptoms. As a result, employers are only required to offer paid testing and time off for testing for the following employees:
Physical Distancing. The revised regulations remove any physical distancing or barrier requirements, regardless of employee vaccination status, with one exception: if the worksite has a “major outbreak” (20+ cases in a single employee group). By contrast, if the worksite has an “outbreak” (3+ cases), the employer must evaluate whether to enforce distancing or barriers.
Face Covering. Vaccinated employees are exempt from wearing face coverings indoors, EXCEPT: (1) in “outbreak” situations (3+ cases) when distancing cannot be maintained; and/or (2) in those settings in which the Cal. Dept. of Public Health (CDPH) requires face coverings: schools, youth settings, public transit, healthcare settings (including long term care facilities), prisons, shelters and cooling centers. Employers must document vaccination record and it must be kept confidential.
Unvaccinated workers must still wear face covering, except when: (1) outdoors; (2) alone in a vehicle; (3) eating or drinking; (4) when disability or religious-related accommodation is required; or (5) when job duties make covering infeasible.
Respirators/N95s. Employers must make respirators/N95 masks available to unvaccinated employees upon request.
Air Filtration. Employers must evaluate ventilation systems to maximize outdoor air and increase filtration efficiency.
Still Required. Employers are still required to:
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