New Law Expands Definition of “Family Member” for Paid Sick Leave & CFRA Leave

Assembly Bill (AB) 1041, signed into law last fall and effective January 1st, expanded the definition of “family member” under both the California Family Rights Act (CFRA) and California’s Healthy Workplaces Healthy Families Act (HWHFA) (aka “Paid Sick Leave”) to include a “designated person” for whom employees can use leave under either CFRA or HWHFA. Employees can designate any person for this purpose per 12-month period.

Under the CFRA, a designated person will mean “any individual related by blood or whose association with the employee is the equivalent of a family relationship.” Under the CFRA, unpaid leave which applies to employers with five or more employees, one reason eligible employees can use unpaid leave is to care for a family member who has a serious health condition.

For purposes of HWHFA (Paid Sick Leave), however, the designated person need not be related and their association need not be the equivalent of a family relationship.

The designated-person changes will affect how employers comply with similar federal, state, and/or local leave laws. Additionally, we recommend employers revise their employee handbooks to reflect this change. We can assist.

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IRS Raises Mileage Reimbursement Rate, Which Can Be Important For Required Employee Reimbursement

The California Labor Code (Sec. 2802) requires employers to reimburse employees for necessary expenses incurred in executing their job duties. A reimbursement obligation arises where an employee is required to use her personal vehicle for work purposes, such as driving between work sites (though not for her regular commute to/from work).
The reimbursement requirement can be satisfied in different ways, including actual expense, mileage reimbursement or a stipend method, provided the employer can establish the employee was fully reimbursed.
The most common method is to reimburse based on mileage. The California Labor Commissioner issued an opinion that using the IRS mileage rate as a multiplier establishes adequate reimbursement of work-related auto expenses, in the absence of evidence to the contrary.
In response to the recent drastic increases in fuel prices, the IRS announced on June 9, 2022, that it would increase the business travel rate to 62.5 cents per mile,effective July 1, 2022. This is a special adjustment for the final six months of 2022. Employers tying reimbursement to the IRS rate should consider increasing their reimbursement to 62.5 cents/mile for the near term.
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US Supreme Court Permits Arbitration of Individual PAGA Claims

In a favorable opinion for California employers, the US Supreme Court, in Viking River Cruises v. Moriana, held employees may be compelled to submit individual Private Attorney General Act (PAGA) claims to binding arbitration (thereby waiving their rights to a jury trial).
By way of background, PAGA permits an “aggrieved” employee who allegedly had their Labor Code rights violated, to step into the shoes of the state Labor Commissioner and enforce certain violations of California labor law. PAGA allows for civil penalties against employers on behalf of the state. Further, only an individual employee brings a claim under PAGA, while other allegedly “aggrieved” employees do not participate in the lawsuit. The default PAGA civil penalty is $100 per employee per pay period for an initial violation and $200 per pay period for subsequent violations.
Prior to Viking River Cruises, PAGA claims could not be compelled into arbitration. In those cases in which an employee was bound by an arbitration agreement, the lawsuit would be split, with non-PAGA claims submitted to arbitration first and PAGA claims decided after the arbitration was completed, essentially subjecting the employer to multiple trials and no benefit of arbitration of PAGA claims.
A second important thrust of Viking River Cruises is that, because an employee bound to arbitrate her PAGA claims lacks standing to prosecute claims on behalf of other similarly “aggrieved” employees, the remaining PAGA claims must be dismissed upon submission of the case to arbitration.
It is important to remember that, based on the current status of California’s Assembly Bill (AB) 51, it remains unclear whether an employer can require a new hire to sign an arbitration agreement as a condition of employment. It remains to be seen how the Supreme Court will address this issue. At this time, it is safest to make an agreement to arbitrate employment claims voluntary.
Additionally, it is critical to understand both the costs and benefits of binding arbitration of employment claims in California, as employers are required to shoulder 100% of the arbitration fees, which can be quite substantial. Employers contemplating adopting an arbitration policy or who wish to fully understand the costs vs. benefits of employment arbitration, should contact us for further information.
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Be Prepared for July 1st Minimum Wage Increases & Inflation

California employers in several cities and counties must be prepared for July 1, 2022 minimum wage increases. While most California localities previously imposed a different minimum wage for employers with more or less than 26 employees, all municipalities listed below, except West Hollywood, will now impose the same minimum wage regardless of size. Here is a quick list of localities where the minimum wage will climb effective July 1st:
  • Alameda: $15.75/hour
  • Berkeley: $16.99/hour
  • Emeryville: $17.68/hour
  • Fremont: $16.00/hour
  • Los Angeles City: $16.04/hour
  • Los Angeles County: $15.96/hour
  • Malibu: $15.96/hour
  • Milpitas: $16.40/hour
  • Pasadena: $16.22/hour
  • San Francisco: $16.99/hour
  • Santa Monica: $15.96/hour
  • West Hollywood (49 or fewer employees): $16.00/hour
  • West Hollywood (50+ employees): $16.50/hour
California employers must also be mindful of the likelihood that the statewide minimum wage may climb faster than expected due to rising inflation. In 2017, California initiated an annual planned increase of the statewide minimum wage, with all employers, regardless of size, scheduled to reach $15.00 per hour effective January 1, 2023.
However, the minimum wage ordinance included an exception triggering an accelerated increase if the U.S. Consumer Price Index (CPI-W) exceeds 7 percent over a specified period of time. Based on current projections, the CPI-W will have risen by 7.6 percent in the period ending in July. On May 12, 2022, when Governor Gavin Newsom announced his proposal for a state inflation relief package, he also announced that California’s minimum wage is now projected to increase to $15.50 per hour, rather than $15.00 per hour, on January 1, 2023, for all businesses regardless of size. Of course, a business operating in any of the listed municipalities must ensure compliance with the higher local minimum wage.
Employers with exempt employees must remember that certain exempt employees must receive a salary of at least twice the state minimum wage (the “Salary Threshold”), in addition to meeting the general duties and other requirements. Whenever the state minimum wage increases, this impacts the Salary Threshold and may cause exempt employees to suddenly become improperly classified. To be clear, the Salary Threshold is tied to the California state minimum wage, not any city or county minimum wage ordinance.
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Understanding Exempt vs. Nonexempt Employees in California

We are frequently surprised that many businesses fail to grasp and correctly apply the criteria for determining when an employee can be classified as Exempt from overtime and/or meal and rest break laws. Employers often assume, based on a worker’s position in the organization, or because s/he is paid a salary, that s/he is automatically Exempt. 
We are surprised, not because the standards for determination of Exempt status are straightforward and easy to apply (Sometimes they are not!), but because the consequences of misclassifying an employee as Exempt can be major, including administrative claims or civil lawsuits for unpaid wages, unpaid overtime, failure to provide rest/meal breaks, liquidated damages, waiting time penalties and related damages (including the employee’s attorney’s fees). Have we got your attention?
The Labor Commissioner applies two (2) standards to determine when an employee can be properly classified as Exempt: (1) the Duties Test; and (2) the Salary Threshold. Exempt employees must fit within one of the following limited list of categories: Executive, Administrative, Professional, Computer/Software, Outside Sales, state or county employees, and a few others.
The Duties Test examines the work performed by the employee during the workweek. For example, the Executive Exemption is limited to an employee whose “duties and responsibilities involve the management of the enterprise or a department or subdivision of the enterprise, who customarily and regularly directs the work of two or more other employees, and who has authority to hire or fire other employees or whose views as to the hiring, firing, advancement, promotion or any other change of status of other employees will be given weight, and who customarily and regularly exercises discretion and independent judgment. There is a different Duties Test for each category of Exempt employee.
The Salary Threshold requires one exempt under the Executive Exemption to earn a monthly salary equivalent to no less than two times the state minimum wage for full-time employment. Full-time employment means 40 hours per week. There is a similar Salary Threshold for most other Exempt categories.
Depending on the circumstances, these tests may be easy or difficult to apply regarding a given employee. Additionally, there are traps for unwary with regard to the Salary Threshold where the worker, for example, meets the Salary Threshold most weeks, but falls below it on a given week.
Employers looking to follow best practices should have their Exempt classification decisions reviewed by employment law counsel or, at minimum, someone with significant Human Resources experience, such as an HR Consultant or a member of the Society for Human Resource Management (SHRM) or its affiliate, Professionals in Human Resources Association (PIHRA).
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Congress Eliminates Mandatory Arbitration of Workplace Sexual Assault and Harassment Claims

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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California Resurrects COVID-19 Supplemental Paid Sick Leave for 2022


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:
  • The employee is subject to a Covid-related quarantine or isolation period.
  • The employee is attending an appointment for themselves or a family member to receive a Covid vaccine or vaccine booster.
  • The employee is experiencing symptoms or caring for a family member experiencing symptoms, related to a COVID-19 vaccine or vaccine booster that prevents the employee from being able to work or telework.
  • The employee has symptoms of COVID-19 and is seeking a medical diagnosis.
  • The employee is caring for a family member who is subject to an order or guidance or who has been advised to isolate or quarantine.
  • The employee is caring for a child, whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19 on the premises.
SPSL benefits:
  • A full-time employee is entitled to 40 hours of SPSL. A part-time employee is entitled to a proportionate number of hours of SPSL based on the type of schedule the employee maintains.
  • Both full and part-time employees are entitled to an additional amount of time, equal to their allotment for the reasons detailed above if the employee or family member for whom the employee is caring for tests positive for COVID-19 (e.g., full-time employees are entitled to an additional 40 hours). Employers are permitted to require documentation of the positive test to provide leave for this reason.
  • The maximum amount of SPSL a full-time employee can take during the period from January 1 to September 30, 2022, is 80 hours.
Additional Facts About SPSL:
  • Employers may limit the leave for symptoms for each vaccination or booster to 3 days or 24 hours unless the employee provides verification from a health care provider that the employee (or their family member) is continuing to experience adverse symptoms.
  • Employers must provide employees with written notice that sets forth the amount of SPSL the employee has used through the pay period in which it was due on either the employee’s itemized wage statement or in a separate writing provided on the designated pay date. The employer shall list zero hours used if a worker has not used any SPSL.
  • Employers are required to post a notice to be developed by the Labor Commissioner about this new SPSL benefit. A copy of the notice can be found here. If an employer’s covered employees do not frequent a workplace, the employer may satisfy this requirement by disseminating the notice through electronic means, such as e-mail.
  • Non-exempt employees shall be compensated based on one of the following: (1) calculated in the same manner as the regular rate of pay for the workweek in which the employees uses SPSL; or (2) calculated by dividing the total wages, not including overtime premium pay, by the total hours worked, in the full pay periods of the prior 90 days worked.
  • The maximum amount an employer can be required to pay for SPSL: not more than $511 per day and $5,110.00 in aggregate.
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California Court Allows Covid-19 Claim of Non-Employee Catching Virus from Employee to Move Forward

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.

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New Law Further Limits Types of Cases That Can Be Settled Confidentially

Since 2019, it has been illegal to require confidentiality in settlement agreements for claims of sexual assault, sexual harassment or discrimination based on sex.

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.

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California Appellate Decision Will Delay Pre-Employment Background Checks

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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What California Employers Need to Know About Current State and Federal COVID-19 Vaccine/Testing Regulations

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 Testing

On 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 Loss

On 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 Mandate

Rumors 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 Status

In 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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California Supreme Court Clarified Rule for Calculating Meal and Rest Period Premiums, and it Applies Retroactively!

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:
  • Ensure your timekeeping system recognizes each instance in which an employee is not afforded an uninterrupted 10-minute rest period during every 4 hours of work, or does not begin a 30-minute uninterrupted, unpaid meal period by the end of his/her 5th hour of work;
  • Ensure your payroll provider is properly calculating the rest or meal period premium under the formula described above;
  • Monitor employee practices to ensure employees are timely taking required rest and meal periods, to reduce the incidence and incidental cost of rest and meal period premiums. Opportunistic employees may abuse the system and routinely collect a rest or meal period premium. Employers should conduct training or, in some circumstances, discipline employees who are unnecessarily triggering rest or meal period premiums.
  • If the term “nonexempt” is unfamiliar, or if you were unaware of the rules regarding rest and meal periods, or the requirement to provide a rest or meal period “premium,” don’t be embarrassed. However, if you have any hourly workers, you absolutely must know these rules or you are potentially at risk for very costly administrative actions or civil lawsuits. Please contact us so we can explain these rules to you an help you stay in compliance with California’s strict wage-hour laws.
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