(323) 652-9451(805) 845-1752
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The California Employment Development Department (EDD) administers Paid Family Leave (PFL), which provides eligible employees with up to 8 weeks of wage replacement benefits when an employee is off work for certain qualifying reasons.
Recognizing that small businesses with employees using PFL experience increased ancillary costs such as cross-training existing staff and hiring and training new or temporary employees to cover for the employees on leave, the California Employment Training Panel and California Labor and Workforce Development Agency have funded a grant program for small employers.
Small businesses in California with 1 to 100 employees who have at least one employee on PFL on or after June 1, 2022, may be eligible for grant monies, up to $2,000 per employee. A grant recipient must be registered to do business in the State of California, on an active status with the California Secretary of State and have an active California Employer Account Number under which employees are listed for payroll.
Employers interested in applying for the grant can apply through the grant website: Californiapfl.com.
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Employers with just five (5) W-2 employees must be prepared for the June 30, 2022 deadline to offer a qualified retirement savings plan (including a 401(a), 401(k), 403(a), 403(b), 408(k), 408(p), or 457(b)) to their employees.
One option for employers that do not already have a plan in place is to register with the California state offered Calsavers program (formerly known as Secure Choice). Information about this plan is available here.
If employers fail to offer a plan by the deadline, they may receive a notice of noncompliance and face steep fines. A penalty of $250 per eligible employee if noncompliance extends 90 days or more after the notice. If found to be in non-compliance 180 days or more after the notice, the employer is responsible for an additional penalty of $500 per eligible employee.
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A California appellate court recently affirmed a trial court victory on behalf of Ralphs Grocery Co., in a case alleging the grocer should have provided suitable seating to its cashiers.
By way of background, most California Industrial Wage (IWC) orders require employers to provide workers “suitable seating” under two circumstances: (1) when the nature of the work reasonably permits the use of seats; and (2) when an employee is not actively engaged in duties that require standing, or during “lulls in operation.”
Former Ralphs employee Jill LaFace sued Ralphs, arguing that cashiers could reasonably perform their cashiering duties while seated and that the company was also obligated to provide seats for cashiers to use during “lulls in operation.” Following a nonjury trial, Los Angeles Superior Court Judge Patricia Nieto held that the nature of LaFace’s work did not permit sitting because “Ralphs cashiers continuously perform work that should or even must be performed while standing.” She also held that Ralphs had no obligation to provide seating for use during “lulls in operation” because the cashiers were expected to remain busy between customers.
LaFace appealed. The appellate court ruled that an employer does not have to provide seating where the employer expects employees to keep busy and not stand, which functionally means there is no “lull” in duties. The court also held that employees bringing suitable seating claims and other claims for penalties under California’s Private Attorneys General Act (PAGA) are not entitled to a jury trial, which may also be seen as a victory for California employers.
For employers of workers where there is some question whether seating may be required, this case highlights the need for an established, clearly comunicated policy. Either employees may be permitted to sit while performing their job or during lulls, in which case suitable seating should be provided, or written policies communicated to workers should make it clear that employees are expected to remain busy, even during lulls in operation.
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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.
Learn MoreIn February, a United States District Court in San Diego dismissed a lawsuit brought by a spouse against her husband’s employer, Kuciemba v. Victory Woodworks, Inc. The suit alleged that the husband contracted Covid-19 while at work due to the employer’s negligence and brought the virus home, where his wife contracted it. The husband brought a separate worker’s compensation claim against Victory Woodworks.
The court initially dismissed the wife’s claim on the basis that worker’s compensation is the exclusive remedy for her claims. Following amendment of the complaint, the court again dismissed the claims, holding that an employer’s duty is only to provide a safe workplace for its employees, and that this duty does not extend to nonemployees, including spouses at home.
While this was certainly a favorable ruling for the employer, the fact it was issued by a federal judge sitting in San Diego may mean the same issue decided by a state court judge sitting elsewhere in the state might reach a different result. Federal judges tend to be more willing to dismiss marginal claims, particularly in San Diego, a conservative jurisdiction.
Learn MoreOn May 18th, Los Angeles County passed an emergency ordinance requiring employers within unincorporated areas of the county to provide employees with up to 4 hours of paid leave (in addition to ordinary Paid Sick Leave and the state-wide Covid-19 Supplemental Paid Sick Leave (SPSL) which took effect in March, 2021.
This applies to all employers, regardless of size of workforce. Full-time employees are defined as either those designated by the employer as full-time, or who were scheduled to work on average at least 40 hours per week in the two weeks preceding the leave. Again, these employees are entitled to take up to 4 hours of paid leave for each vaccination injection.
Part-time employees are entitled to a prorated portion of additional paid leave for vaccination. For example, a part-time employee who worked 20 hours in the two weeks preceding the leave are entitled to just 2 hours of additional vaccination leave.
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I always thought that “The Strongly-Worded Letter” would be a decent name for an indie rock band. Right up there with “The Wheelchair Assassins.” It would have been fun to be a rock star. But I hawked my drums and went to law school, so I do that thing now instead. Plus, I’d look silly with a mohawk.
This post is about the strongly-worded letter we write as litigators, though no one calls it that. Sometimes it is a “cease and desist letter” or it could be a “demand letter.” In each instance, it is often the first opportunity the opposition–and their lawyers–have to see what they’re up against. In my view, it is not an opportunity to squander.
Why is this letter so important? Well, in my experience sending a cease and desist or demand letter rarely achieves its stated goal. While our clients would like nothing more than to immediately get their way, it almost never occurs that someone undertakes any major action after receiving a cease and desist or demand letter. It just doesn’t work that way. Even in those rare instances in which an entity knows it did the wrong thing, knows it will have to pay eventually, and–rarest of all–the demand contained in the letter is not all that unreasonable, it would be contrary to human nature to receive a demand letter, sit down and just write a check. And everybody knows this.
As a result, while these letters ostensibly demand a stated change or outcome, they are fundamentally dishonest in that they are written by a writer, and intended for an audience, that implicitly understand that that stated change or outcome is not going to come without a fight. A letter alone won’t do it. In my view, then, such letters should be written, not with any expectation they will be heeded and their demands will be immediately met. Rather, they should be approached for what they really are, and what they really do. So, what do they really do?
-They alert a party that he/she/it has been found out. They serve notice.
-They identify our client, whether an individual, a family, an organization or a corporation.
-They attempt to describe a set of facts and circumstances that require redress.
-They educate the opposition and its lawyers who we are, who our clients have chosen to represent them in this dispute.
But this is superficial. The letters do these things, but they do more. They can create leverage (or not). Most importantly:
-They give the opposition an idea how serious our client is about the issue.
-They paint a picture of our client’s financial resources. Who can they afford to hire? How much can they invest in this controversy.
-They can educate the opposition (or not) about how much our clients know about the facts underlying the controversy. Are our clients grossly misinformed?
-They establish credibility.
It’s this last point that I feel is most important. The letter establishes our client’s credibility and our own, as well. It is this credibility that sets the stage, establishes relative power and will remain important throughout the life of the dispute. Is your client serious about this dispute, serious about getting his/her/its way and serious about doing what it takes, and spending what it costs, to achieve its desired result? This first letter will communicate much of this.
In my next post, I will discuss what you and your client should and should not do to gain credibility in any strongly-worded letter.
The California Family Rights Act provides up to 12 weeks of unpaid job-protected leave for eligible employees to care for themselves and a wide variety of family members. More specifically, under the current CFRA:
Most importantly, SB 1383 expands the range of covered employers under the CFRA to employers with just 5 or more employees. Previously, a covered employer had to have at least 50 employees within a 75-mile radius of the workplace where the leave-seeking employee worked.
The new law also expands the range of family members for whose care CFRA leave may be taken. Effective January 1st, employees may take CFRA leave to care for grandparents, grandchildren and siblings.
If both parents work for the same employer, SB 1383 eliminates the current requirement that the parents split the 12-week leave time. Effective January 1st, each employee-parent will be entitled to his/her own 12-week leave.
Finally, SB 1383 makes it an unlawful employment practice for any employer to refuse to grant a request by an employee to take up to 12 workweeks of unpaid protected leave during any 12-month period due to a qualifying exigency related to the covered active duty or call to covered active duty of an employee’s spouse, domestic partner, child, or parent in the Armed Forces of the United States.
With just 24 days before SB 1383 takes effect, employers that were not previously covered under the CFRA should take immediate steps to become familiar with the Act and revise their employee handbook and policies to reflect the change. Employers already covered by CFRA should understand the changes and revise their handbook and policies accordingly.
Employers seeking to better understand this new law should contact their employment law professional.
On September 17, 2020, California Governor Gavin Newsom signed into law two critical pieces of legislation. Assembly Bill (AB) 685, which imposes certain notification obligations on employers when one or more employees test positive for COVID-19, takes effect January 1, 2021. Senate Bill (SB) 1159 expands employees’ rights to workers’ compensation benefits and also imposes a significant new reporting deadline when an employee tests positive for COVID-19. SB 1159 takes effect immediately.
AB 685 Notice Requirements
Assembly Bill 685 imposes important notification requirements when employers discover that one or more employees have been diagnosed with COVID-19. More specifically, the new law sets forth the following notice requirements:
Within one (1) business day of a “potential exposure” based on a confirmed case of COVID-19 in a workplace, an employer must:
• Provide written notice to all employees, employers of subcontracted employees and employee representatives, including unions who were at the worksite within the infectious period who may have been exposed o COVID-19.
• Provide written notice to employees and/or their representatives regarding COVID-19-related benefits that employees may receive, including workers’ compensation benefits, COVID leave, paid sick leave and the employer’s anti-discrimination, anti-harassment and anti-retaliation policies.
• Provide notice to employees regard the employer’s disinfection protocols and safety plan.
Written notice under the law may be made by personal delivery, text message and/or email, provided that it can be reasonably anticipated to be received within one (1) business day. It must also be in English and the language understood by the majority of employees.
AB 685 also requires employers who have a sufficient number of COVID-19 positive cases that meet the definition of a COVID-19 outbreak (as defined by the Cal. State Dept. of Health), to report certain information to the employer’s local health agency within forty-eight (48) hours of learning of the outbreak.
The requirements of AB 685 do not apply when the employee(s) who test positive for COVID-19 work remotely. Again, AB 685 takes effect January 1, 2021.
SB 1159 – Disputable Presumption
SB 1159 has two important components related to employees who test positive for COVID-19. First, it creates a “disputable presumption” that an illness or death resulting from COVID-19 arose out of and in the course and scope of employment for workers’ compensation purposes. This presumption covers cases in which the worker tested positive from July 6, 2020 through January 1, 2023. Thereafter, the presumption will no longer apply.
In order for the presumption to apply: (1) the positive test for COVID-19 must occur within 14 days after a day that the employee worked at the employer’s place of employment; (2) the day of work was on or after July 6, 2020; and (3) the positive test must have occurred during a period of an outbreak at the employee’s place of employment.
Important for this presumption, an “outbreak” exists if, within 14 days, one of the following occurs at the place of employment: (1) if the employer has <100 employees at a specific site, 4 employees test positive for COVID-19; (2) if the employer has >100 employees, 4% of the employees test positive for COVID-19; (3) a specific place of employment is ordered to close by a local public health department, the State Dept. of Public Health, Div. of Occupational Safety and Health or a school superintendent due to a risk of infection with COVID-19.
SB 1159 – Reporting Requirements
SB 1159 also creates new reporting requirements. When an employer knows or reasonably should know that an employee has tested positive for COVID-19, the employer must report that fact to its workers’ compensation claims administrator within three (3) business days, via email or fax.
The information to be reported includes: (1) that an employee has tested positive (no personally identifiable information regarding the employee, unless he/she asserts the infection is work-related or has filed a claim); (2) the date the employee tested positive; (3) the address of the specific place of work during the 14-day period preceding the positive test; and (4) the highest number of employees who reported to work at the employee’s specific place of employment in the 45-day period preceding the last day the employee worked at each specific place of employment.
What Employers Should Do Now
Employers should immediately become familiar with these new requirements. Employers with any questions about these new laws should contact their employment law professional.
The Law Offices of Alex Craigie helps employers throughout California prevent, address and resolve employment disputes in a logical and cost-effective manner. Reach us at (323) 652-9451, (805) 845-1752 or at [email protected].
On October 10, 2019, California Governor Gavin Newsom signed a bill (AB 51) intended to prohibit employers from requiring employees to sign agreements that they will submit claims arising from their employment to binding arbitration (as opposed to resolution of the dispute in the civil court system, by judge or jury). The law takes effect January 1, 2020. The new law, if ultimately enforced, has important implications for any employer that requires employees to sign arbitration agreements.
What the Law Says
Assembly Bill 51 adds Section 432.6 to the California Labor Code. While it was packaged as a “sexual harassment” bill, AB 51 covers virtually any claim arising from the employment relationship (excluding workers’ compensation claims, which are not arbitrable in any event). The new law:
Why the New Law Might Ultimately Be Held Unenforceable
Most experts expect to see legal challenges to the new law, primarily on the grounds that it conflicts and is preempted by the FAA, which dates from 1925 and exists to further arbitration in cases involving interstate commerce. Individual state laws that “stand[] as an obstacle to” arbitration have been repeatedly struck down by the United States Supreme Court as preempted by the FAA. Whether the new law will survive these challenges is presently unclear.
What Employers Should Do
Given the uncertainty surrounding AB 51, it is important that employers who currently (or intend to) require workers to sign arbitration agreements take steps before the end of 2019 to ensure compliance if the law is ultimately enforced. No employer should want to be a “test case.”
Because the law specifically excludes FAA-governed agreements, certain employers (depending on industry) may still be able to require employees to sign an agreement to submit employment disputes to arbitration under the FAA (stating the basis for FAA jurisdiction).
Alternatively, employers could continue to include arbitration provisions, but exclude administrative charges that employees may file with the DFEH, EEOC, NLRB, DOL or the California Labor Commissioner from arbitration. Unfortunately, these exceptions would essentially remove the protections afforded by arbitration in the first place.
As the law in this area remains fluid, employers should not hesitate to consult with their qualified employment law professionals to ensure they remain compliant with all state and federal employment laws, including AB 51.
The Law Offices of Alex Craigie helps employers throughout California prevent, address and resolve employment disputes in a logical and cost-effective manner. Reach us at (323) 652-9451, (805) 845-1752 or at [email protected].
