As fires rage across the Western United States, I find myself spending more time monitoring air quality. In the good old days, that used to mean looking outside to see if the sky was clear or hazy. Now it involves checking websites or home monitors to determine the Air Quality Index for particulate matter with a diameter of 2.5 micrometers or smaller (i.e., AQI for PM2.5). I know I’m not alone in this respect.

California employers with employees working outside need to be aware that the state’s Division of Occupational Health (better known as Cal/OSHA) has issued standards it expects employers to follow. Specifically, it expects employers to:

  • Regularly monitor forecasts and current AQI for PM2.5. Employers can monitor this through various websites such as U.S. EPA AirNow, the U.S. Forest Service Wildland Air Quality Response Program, the California Air Resources Board, your local air pollution control district, or your local air quality management district. There are also various apps for this purpose, two popular ones being IQAir and PurpleAir. Or you can purchase your own monitor (although I suspect that you may have to wait a while to get one now.
  • According to Cal/OSHA, if AQI is greater than 150, you must:
    • Take steps to protect employees. These can include any combination of the following:
      • Providing N95 masks (or better).
      • Locating work in enclosed structures or vehicles where the air is filtered.
      • Moving workers to areas with lower AQI.
      • Reducing work time in areas with unfiltered air.
      • Increasing rest time and frequency.
      • Providing a rest area with filtered air.
      • Reducing the physical intensity of the work.
    • Have a system to communicate to employees when levels are high and they should take steps to protect themselves.
    • Let employees know that, without fear of retaliation, they can:
      • Report wildfire smoke hazards
      • Seek medical attention
    • Train employees on how to protect themselves, how to report concerns, how to learn the AQI where they work, and other topics as specified here.

Employers can find more detail on the Cal/OSHA website here. As always, the basic principals are that employers must take appropriate steps to keep their workers safe and not retaliate against workers for raising concerns in good faith.

Stay safe!

With so much going on for employers in 2020, let us not forget the #MeToo movement and related changes in California’s laws requiring sexual harassment prevention training.  All employers with more than five employees anywhere must train all California employees (managers/supervisors and staff) on sexual harassment prevention training before year end.

A while back, I posted that the DFEH had a new online tool for employees, and suggested the California employers make it part of their new hire orientation.  The DFEH has now also posted a new online tool for managers and supervisors.  Yes, both are free!  And available in six languages.  And yes, all of your California employees must be trained.  And yes, you must pay for the time it takes your employees to watch the videos.  And yes, you must keep records of that training (because you must be able to prove compliance).

While there is no great substitute for in-person training, or training tailored to the particular issues in your workforce even if provided online (and our firm provides excellent training), a free training is much better than nothing.  So if costs are an issue this year, please make sure you at least do the bare minimum, and ensure that all employees (from your most senior management to your part-time or temporary hourly workers) are trained before year end.  Or take it up a notch, and have everyone watch the videos and also have an outside trainer or HR professional lead a discussion session afterwards.

Take it from me, if your business gets sued for harassment, the first piece of evidence you are going to be asked for is proof that the alleged harasser(s) and victim(s) attended your mandatory training.  Hopefully, you won’t have to scramble to figure that out, or explain why the alleged harasser is the one person who missing the training.  Trust me, that is not a helpful fact in the defense of harassment claims.

 

Anticipation mounts as we watch for California Governor Gavin Newsom’s action on bills of immediate importance to employers. The Governor has until September 30, 2020 to sign or veto the following bills of concern:

SB 1383Historic Extensions of California Family Rights Act Obligations

If signed by the Governor, this bill will extend the California Family Rights Act (CFRA) to include private sector employers of five or more employees. Currently, private employers are subject to CFRA only if they employ 50 or more employees. If enacted, the measure will impose the often involved obligations and corresponding risk of liability on countless small employers throughout the state. CFRA requires employers to provide up to 12 workweeks of unpaid leave each 12-month period for family and medical leave.

The bill, if approved by the Governor, will also expand CFRA by permitting employees to take leave to care for the serious health condition of the employee’s grandparent, grandchild, sibling or domestic partner. Presently, other than leave to care for the employee’s own health condition, CFRA entitles employees to take such leave to care for only the employee’s child, parent or spouse. Thus, if the measure is enacted, California employers large and small will be required to provide job-protected CFRA leave in circumstances not previously encompassed by CFRA.

Importantly, the federal corollary to CFRA, the Family Medical Leave Act (FMLA), does not require employers to grant leave to care for an employee’s grandparent, grandchild, sibling or domestic partner. Upon SB 1383 becoming law, if it does, employers will be confronted with employees seeking CFRA leave to care for, say, a grandparent, and later in the same 12-month period seeking FMLA leave to care for the employee’s child, parent or spouse. In such circumstances, a question will arise as to whether the employee is entitled to a total of 24 weeks of leave in a single 12-month period, that is, 12 weeks under CFRA and an additional 12 weeks under the FMLA.

The Governor has advocated for expanding obligations and rights under CFRA in respects similar to what would be accomplished by SB 1383. The Governor is generally expected to sign SB 1383, in which case the amendments to CFRA set out in the bill will go into effect on January 1, 2021.

AB 3216New Union-like Recall and Retention Obligations

The bill would obligate subject employers, before being able to lawfully hire other applicants, to offer to recall former employees who were laid off in relation to a state of emergency declared by the Governor (emergencies not limited to COVID-19). The bill takes on perhaps unanticipated significance now, as tragic fires decimate immense swaths of California, leaving businesses in ruin.

The employers subject to the bill are hotels, private clubs, event centers, airport hospitality operations, airport service providers and enterprises providing janitorial, building maintenance or security services to office, retail or other commercial buildings.

The employees owed recall rights under the bill are (1) those who were laid off due to a governmental shut down or other order; and, (2) those who lost their jobs for economic reasons related to a state of emergency. Covered employers would be required to offer former employees information on available positions whenever the available position is “the same or similar” to the position the former employee held or the former employee would be qualified for the open position “with the same training that would be provided to a new employee hired into that position.” The measure would obligate employers to hire qualified former employees, where available, in order of seniority and in preference over other applicants.

The bill also addresses a second circumstance: rights of former employees laid off in relation to a state of emergency and, particularly, where the former employer was sold, the assets were sold, the form of organization of the business changed (e.g., from LLC to corporation) or the employer relocated the former employee’s worksite. In those instances, the successor employer would be required to hire from among the former employer’s laid off employees for six months after the successor employer opens for business. Moreover, the successor employer would be required to retain each former employee hired for 90 days. During the 90-day “transition period,” such employees would not be subject to discharge without cause.

AB 3216 is similar to ordinances enacted by Los Angeles, Long Beach, San Francisco and other local jurisdictions. The impact of the bill, if signed by the Governor, though, would be more dramatic as the bill would impose its obligations on the covered employers throughout California.

Governor Newsom has not taken a public stand on the bill. If signed by the Governor, the bill, which would enact Labor Code section 2810.8, would go into effect on January 1, 2021.

SB 973New Pay Data Reporting to the DFEH

The measure would require subject employers to file a report annually with the California Department of Fair Employment and Housing (DFEH) providing information on the number of employees by race, ethnicity and sex in each of 10 broad exempt and non-exempt position categories. Private sector employers having 100 or more employees and which are required to file an annual Employer Information Report (EEO-1) under federal law would be subject to SB 973.

The bill would require employers to file their first reports no later than March 31, 2021. Annual reports would then be required to be filed no later than March 31 of each year.

Importantly, the bill would require the DFEH to provide employers’ reports to the California Labor Commissioner’s Division of Labor Standards Enforcement (DLSE) on request, presumably for use in DLSE investigations and enforcement actions.

The bill raises the specter of public access to employers’ reports, including, potentially by plaintiff’s attorneys. In that regard, the bill provides that the DFEH and DLSE shall not make public information from employer reports that identifies any particular employee, at least until after either agency undertakes an investigation or enforcement proceeding and then only to the extent necessary. The bill also provides that such individually identifiable information shall not be disclosed pursuant to a request under the California Public Records Act. By its express terms, the bill does not appear to otherwise bar public disclosure of the reports or their contents.

Importantly, the bill would empower the DFEH to enforce California’s Equal Pay Act, in addition to the Labor Commissioner’s current enforcement authority.

Under the measure, employers with multiple “establishments” in the state would be required to submit a report for each location and a consolidated report that includes all employees. The bill defines “establishment” as “an economic unit producing goods or services.” Given this provision, the bill would impose a double layer of burden and expense on retail, manufacturing, hospitality, service and other types of businesses with multiple manufacturing, sales, service or production sites in the state.

Where an employer’s EEO-1 for a particular reporting year contains the same or substantially similar data as required under the bill, an employer would be allowed to submit its EEO-1 in compliance with the bill.

The Governor’s position on SB 973 is not publicly known. However, should the Governor sign off on the bill, it may likely equip state enforcement agencies and others with potentially potent data for use against employers, regardless of the misimpression such data may often give.

If signed by the Governor, the bill will become effective January 1, 2021, amending Government Code section 12930 and enacting new Government Code section 12999.

SB 1159Workers Compensation Claims for COVID-19: Presumptions against Employers

The measure would include illness, injury or death due to COVID-19 as “injury” under the state’s Workers Compensation Act. The bill would create a disputable presumption that the injury arose in the course of the claimant’s employment and is compensable under the Act. Further, the bill would strengthen another presumption available under the Act, providing that, where it is not disputed within 30 or 45 days after being made, a workers compensation claim for a COVID-19 injury would be presumptively compensable, as opposed to the usual 90-day period for such presumption.

Due to its scope and the fact that, if signed by the Governor, the measure would be statutory in nature, the bill is of greater consequence than a similar Executive Order signed by Governor Newsom on May 6, 2020, namely, Executive Order N-62-20.

The bill would add four sections to the Labor Code, each of which would be repealed effective January 1, 2023 by their terms.

The bill would become effective immediately as urgency legislation, upon being signed by the Governor.

AB 685Potential Exposure to COVID-19 in the Workplace: New Employer Obligations

Under the measure, in the event an employer receives notice of potential exposure of an employee to COVID-19, the employer would be required to take all of the following actions within one business day:

Give written notice to all employees who were at the worksite of the potentially exposed person within the infectious period that they may have been exposed to COVID-19;

Give written notice of the potential exposure to the union representative, if any, of the employees described above;

Give all employees who may have been exposed and their union representatives, if any, information regarding applicable COVID-19-related benefits under federal, state or local law; options for exposed employees, including types of available leave; and protections for employees against retaliation and discrimination; and,

Notify all employees and their union representatives, if any, of the disinfection and safety plan the employer will implement and complete pursuant to Centers for Disease Control guidelines.

The notice obligations above would be triggered when the employer receives notice from the employer’s own testing protocols, a public health official, a medical care provider, an employee or a subcontracted employer that a COVID-19-infected person, a person subject to an isolation order or a person who then died due to COVID-19 was at the worksite.

The bill includes a provision that would make unlawful retaliation against an employee for disclosing a positive COVID-19 test or diagnosis or order to quarantine or isolate.

Finally, the bill would empower the California Division of Occupational Safety and Health to shut down an employer’s operation and bar entry into the workplace.

By their terms, several provisions of the bill, if enacted, would be automatically repealed effective January 1, 2023.

The Governor has expressed support for the bill. The bill will go into effect on January 1, 2021 if, as may be expected, the Governor signs it.

AB 1066Unemployment Insurance Benefits

The bill provides that where employers fail to provide requested information or documents to the Employment Development Department within 10 days, a presumption will arise that the claimant is entitled to the maximum benefits available.

We will Update You!

Our California labor and employment team will continue to monitor Governor Newsom’s action on these bills and other developments in this, the cutting-edge state for employment law, and keep you updated.

Yesterday, Governor Gavin Newsom signed AB1867 into law, which provides supplemental paid sick leave benefits for California workers.  The new law, which adds section 248.1 to the Labor Code, provides coverage for employees who did not receive paid sick leave benefits under the federal Families First Coronavirus Response Act (“FFCRA”). The effective date will be within 10 days of the governor’s signature.

New Labor Code section 248.1 applies to private “hiring entities” (including sole proprietorships) with 500 or more employees in the United States, who were excluded from federal paid sick leave benefits under the FFCRA.  It requires up to 80 hours of supplemental paid sick leave for full time employees for the following reasons:

(A) The covered worker is subject to a federal, state, or local quarantine or isolation order related to COVID-19.
(B) The covered worker is advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19.
(C) The covered worker is prohibited from working by the covered worker’s hiring entity due to health concerns related to the potential transmission of COVID-19.

Notably, California employees cannot use supplemental paid sick leave for a family member, or to care for a child if their school closes, or childcare provider is unavailable, due to COVID-19, though local paid sick leave laws may be more expansive.  Supplemental paid sick leave also will not apply to employees on furlough.

This paid sick leave is in addition to the leave required under the Healthy Workplace Healthy Families Act. But, if an employer provided any “supplemental” paid time off for COVID or the employee took additional time off for COVID since March 4, 2020, that leave can count toward the new required allotment. So, existing traditional PTO policies will not appear to offset the new requirement and the law specifically prohibits a hiring entity from requiring a covered worker to use any other paid or unpaid leave, paid time off, or vacation time provided by the hiring entity to the covered worker before the covered worker uses COVID-19 supplemental paid sick leave or in lieu of COVID-19 supplemental paid sick leave.

The law also mandates supplemental sick leave appear on pay stubs and that records on leave taken be maintained for three years.

AB1867 has several unrelated provisions included in the bill.  It launches a pilot program for mediation of CFRA violations under a new family leave mediation program. It also codifies existing paid sick leave and hand-washing protocols for food facility workers found in Executive Order N-51-20, which Governor Newsom signed earlier this year.

In meaningful numbers, employers across the U.S. who are rebuilding their workforces are being sued by employees not recalled from COVID furloughs and applicants not hired. Last week, I posted an Alert describing the risks to employers nationally of such litigation and giving recommendations on hiring up defensively. California employers, in particular, may be at the greatest risk of such litigation and their planning accordingly is vital.

Local Recall Obligations

First, several California cities have enacted ordinances giving union-style rights to non-union employees who were furloughed or laid off due to the pandemic, that is, rights to be recalled with legally-mandated preference over other candidates. Los Angeles, Long Beach, San Francisco and Oakland, for example, have enacted such measures. Other jurisdictions may follow. The ordinances place involved burdens on employers. They are also traps for companies who are not thoroughly familiar with the requirements, including companies based outside California but with operations in such cities. Our firm’s Alert on the San Francisco ordinance, for example, may be found here.

AB 3216 on Governor Newsom’s Desk

Such obligations may become the law statewide. Late in the night on September 1, the California Legislature passed a bill that would impose such recall requirements on employers throughout the state, obligations, in fact, that will be more intricate and burdensome than those cities have in place now. If signed by Governor Newsom, Assembly Bill 3216 will enact Labor Code section 2810.8, a five-page long system of recall and other rights for employees of certain hotels, private clubs, event centers, airport operations and companies providing janitorial, maintenance or security services to office, retail or other commercial buildings.

The Governor has until September 30 to sign or veto AB 3216.

Unparalleled Legal Ammo for California Employees and Applicants

California employees not included in recalls from furloughs and applicants who are not hired have at their disposal what is almost certainly the nation’s most potent arsenal of grounds for claims that they were victims of discrimination or retaliation, namely, the California Fair Employment and Housing Act and the California Labor Code. California’s legal terrain makes it necessary for employers with operations here to plan their staffing up with at least the same care they invest in designing defensible reductions in force.

Hire Up Defensively

Rebuilding workforces from a thoughtful, defensive perspective is important everywhere, but perhaps most critical in California. Please take into account the risks and preventive considerations discussed in my Alert.

On Monday night, the California legislature passed Assembly Bill 2257 (AB2257), a clean-up bill to Assembly Bill 5 (AB5).  Under AB 2257, musicians, fine artists, freelance writers, photographers, and translators would be among those getting exemptions from AB5 to continue working as independent contractors, rather than as employees.  The bill is expected to be signed into law by Governor Newsom later this month.   AB 2257 would have significant implications for specific industries, including:

  • Eliminate submission cap for freelance writers and photographers (current rules require freelancers who contribute more than 35 submissions to be classified as an employee);
  • Exempt underwriting inspections and other services for the insurance industry from the ABC test;
  • Exempt certain occupations in connection with creating, marketing, promoting, or distributing sound recordings or musical compositions from the ABC test;
  • Create exceptions for licensed landscape architects, specialized performers teaching master classes, registered professional foresters, real estate appraisers and home inspectors, and feedback aggregators.

Notably, AB 2257 does not provide exemptions for workers in the rideshare industry such as Lyft and Uber.  You can find an update on the latest in the rideshare industry here.

As we blogged in December and April, Governor Gavin Newsom signed AB5 into law in September 2019.  The new law expanded the California Supreme Court’s decision in Dynamex Operations West, Inc. v. Superior Court.  Specifically, it applied Dynamex’s “ABC Test” to both California Wage Orders and the California Labor Code, creating the presumption that workers in California are employees, not independent contractors – unless an employer can satisfy a three pronged test known as the ABC test.

We will provide you with updates on AB5 as the landscape continues to evolve in the coming weeks and months.

Several weeks have gone by since Governor Newsom paused California’s reopening plan due to a surge in COVID-19 cases, leaving California businesses with little guidance as to when they could resume reopening.  On August 28, 2020, the state finally released The Blueprint for a Safer Economy.  This new blueprint for reopening is a four-tier, color-coded system that lays out the restrictions for each activity in each county, with Tier 1 being the most restrictive.

  • Tier 1 – Purple: Widespread
  • Tier 2 – Red: Substantial
  • Tier 3 – Orange: Moderate
  • Tier 4 – Yellow: Minimal

While most of the state’s counties are in currently in Tier 1 (hence the prevalence of purple in the map), California residents and businesses owners will receive weekly updates related to their county’s progress and whether the COVID-related metrics qualify the county to move up a tier where more businesses and activities are allowed to resume and less restrictions apply.  The Blueprint went into effect on August 31, 2020 and the first update will be provided on September 8, 2020.

While we continue to grapple with the uncertainty that is COVID-19, this new Blueprint at least provides a framework to plan ahead for both businesses and individuals.  Check out this Alert written by our own Liku Madoshi for more information on California’s new blueprint, and how it might impact you.

As someone who represents employers, I’ve long been a proponent of arbitration as a way to limit exposure to employment claims. I have colleagues who disagree and I recognize that it’s a complicated issue. So starting about five years ago, I’ve been laying out what I saw as the pros and cons of mandatory workplace arbitration. I did so to enable employers to make informed decisions on their own as to what course to take.

Like so much of employment law (and life in general), the only constant is change. Since I wrote on this topic last October, a federal district court ruled that AB 51 (seeking to ban mandatory workplace arbitration) was unenforceable, a state appellate court issued a decision restricting third-party discovery (Aixtron, Inc. v. Veeco Instruments Inc.), and COVID-19 has drastically decreased courts’ ability to get civil cases to trial. So given the current situation, here’s what I see as the pros and cons.

The Pros

  1. You avoid runaway, emotion-fueled jury verdicts. Any skilled plaintiffs’ trial lawyer knows how to appeal to jurors’ emotions. Those techniques don’t work as well on an experienced arbitrator. For that reason, while arbitration awards can be substantial, they tend to be more closely rooted in reality.
  2. The procedures (including discovery) are usually more streamlined than cases in court. Usually, that’s a benefit for the employer, who’s bearing the cost of the proceedings.
  3. The cases tend to settle more cheaply. This is a function of item 1 above. Employees and their attorneys can’t base their negotiation position on the fact that, if they just get before a jury, they have a shot at a windfall.
  4. Cases usually resolve more quickly in arbitration than in court.
  5. The attorneys’ fees are usually lower.
  6. If you win, the other side’s opportunity to appeal is very limited.
  7. Since the Supreme Court decided Epic Systems Corp. v. Lewis in 2017, it is now clear that you can require employees to waive the right to pursue class actions.
  8. It’s always been a struggle to get employment cases to trial. Every trial lawyer knows the frustration of preparing for trial, getting your witnesses prepared, lugging your files to court, and being told there are no courtrooms available and to come back in a few months. Given court closures due to COVID-19, and the need to give criminal trials priority, that problem is not going away anytime soon. Arbitration hearings, in contrast, usually proceed as scheduled.
  9. To the extent that proceedings take place by remote video, a jury trial will be far more unwieldy than an arbitration hearing. Trying to assess whether jurors are engaged and how they’re reacting by video seems especially daunting.

The Cons

  1. It’s easier for unrepresented parties to bring weak claims in arbitration. Because there are fewer procedural rules, it’s easier for a party to proceed even if they can’t convince a lawyer to take their case.
  2. Forum and arbitrator costs are higher and, in California and many other jurisdictions, the employer bears the vast majority of those costs.
  3. While Epic Systems resolved the issue of class action waivers, the California Supreme Court has said “no” to mandatory arbitration of Private Attorney General Act claims. Eventually, the U.S. Supreme Court may need to address that issue. But it’s not eager to do so, having passed up numerous opportunities.
  4. As our friends at Wage & Hour – Developments and Highlights have pointed out, plaintiffs’ lawyers who previously filed class actions may now start filing multiple individual arbitrations for wage and hour violations, which could subject employers to burdens and expenses that rival class actions.
  5. As part of the #MeToo movement, there have been concerted attempts by some to argue that arbitration agreements protect harassers. However, any remedy that an employee can recover in court in California against a harasser is available to the same extent in arbitration. I’ve also heard  arbitration attacked as a “secretive” process. It’s true that arbitration hearings are generally more private than court trials. But I know of nothing that prevents a claimant in arbitration from publicizing her claims however she wants. Still, there’s no question that the decision to adopt an arbitration program can be characterized as coercive or oppressive by certain groups.
  6. If you lose at arbitration, your opportunity to appeal is very limited.
  7. It can be harder to get cases out on dismissal or summary judgment.
  8. While it hasn’t been my experience, some say that arbitrators tend to “split the baby.”
  9. Based on the Aixtron decision, unless the arbitration agreement specifically allows it, you may not be able to subpoena information from third parties for discovery. I don’t know if that disadvantages one side over another, but it’s worth noting.
  10. Every year, the California Legislature passes a bill aimed at abolishing mandatory workplace arbitration. Governor Brown repeatedly vetoed the bills as unconstitutional. Governor Newsom signed AB 51, but as noted above, a federal court deemed it unlawful. That litigation, and the resulting uncertainty, continues.

So what are employers to do?

The lawyers who represent employees have been fighting to do away with workplace arbitration for years. The battle began well before the #MeToo movement. The reasoning has nothing to do with arbitrators being biased (they are certainly better at applying the law to the facts than juries) or plaintiffs not having an effective way to vindicate their rights (they can bring the same claims for the same remedies).

The issue here is money. Because juries are more likely to be swayed by emotion than arbitrators, a jury is more likely to grant a windfall verdict. As a result, jury verdicts tend to be higher than arbitration awards.  A corollary of that is that cases that are heading to a jury trial (with the greater possibility of an emotion-fueled verdict) tend to settle at a higher dollar amount than cases that are headed to arbitration. Sure there are other arguments for and against arbitration. But it would be naive to underestimate the financial motives behind this battle — on both sides.

I’ve defended hundreds of cases for employers over the years in court and in arbitration. From that experience, I believe that – for most employers – the pros outweigh the cons. Since most cases end up settling and cases subject to arbitration tend to settle more cheaply, I believe arbitration agreements still make sense. Of course, every employer is different in terms of goals, risk tolerance, employee relations, and myriad other factors. So you should discuss what makes sense for your company with qualified employment counsel.

UPDATE: I’ll be speaking on this topic at noon on September 24, 2020 at a virtual meeting of the San Mateo County Bar Association Labor and Employment Section. Register here.

The fate of rideshare companies in California has taken several dramatic twists today following last week’s preliminary injunction enjoining Lyft and Uber from classifying their drivers as independent contractors.

The trial court’s injunction, issued on August 10th, served as a considerable defeat for Lyft and Uber in their attempt to avoid a revamped employee classification test under AB-5 (the California statute codifying the ABC standard into widespread law).  Under the ABC test, employers must satisfy all three of the following prongs to establish independent contractor status for workers: (A) the company must not be able to control or direct what the worker does, either by contract or in actual practice; (B) the worker must perform tasks outside of the hiring entity’s usual course of business; and; (C) the worker must be engaged in an independently established trade, occupation or business.  The ABC test has a significant impact on California employers as there are steep penalties for misclassifying workers as independent contractors, including violations for unpaid wages, missed meal and rest breaks, and overtime.

The stay on the trial court’s injunction was set to expire today, requiring that Lyft and Uber begin compliance on August 21, 2020.  This morning, Lyft sent major shock waves across the “gig” economy when it announced that it would suspend all ride hailing operations across California as a result of the injunction.  Uber also announced that it would take similar drastic measures throughout the state.

However, on Thursday afternoon, the California Court of Appeals issued an order extending the deadline for Lyft and Uber to comply with the trial court’s injunction until Lyft’s and Uber’s appeals on the injunction are adjudicated.  As part of the Court of Appeals’ order extending time, Lyft and Uber’s appeals must be consolidated and both companies are required to submit statements from their chief executive officer confirming that they have developed implementation plans under which, if Proposition 22 on the November 2020 ballot fails to pass, the companies will be prepared to comply with the injunction.  Oral argument on the appeal is scheduled for October 13, 2020, and is set to be a monumental battle on AB-5.

As alluded to in today’s order by the Court of Appeals, Uber and Lyft, along with DoorDash, were successful in getting a proposition on California’s 2020 ballot known as “Proposition 22” that, if approved, would allow these companies to avoid AB-5 and continue to classify their workers as independent contractors.  Proposition 22 also stipulates that the companies provide more benefits to drivers, such as a minimum wage and access to health and workers’ compensation insurance.  It is a proposal for a hybrid status, as was suggested here many years ago.  Suffice it to say, Proposition 22 has massive implications for the future of California’s economy.

Stay tuned for more updates in California’s gig-economy battleground!  And in the meantime, you can still rely on Uber and Lyft to get you where you need to go.

As you may have heard, the federal Department of Labor has issued new Certification of Health Care Provider forms for an employee’s own serious health condition (WH-380-E) and to care for a family member (WH-380-F).

These forms are important to justify an employee’s request for FMLA and provide much more information than a simple doctor’s note.  If you don’t require employees to complete these forms for every FMLA leave, you should.

But can California employers use the federal forms?  The answer is yes, BUT with the following clarifications:

  • In California you are not allowed to obtain the underlying diagnosis, illness, impairment, or physical/mental condition.  This is because of our state’s Constitutional right to privacy.  So, it helps to clarify that the health care providers should not disclose such patient information (or genetic information, which is also protected under California law).
  • The forms only reference FMLA, but California also has the California Family Rights Act (CFRA), so make sure to clarify that any leave granted in California is FMLA/CFRA, and not just FMLA.
  • The forms do not specifically reference California’s Pregnancy Disability Leave laws, so again, make sure to clarify that any overlap in leaves is properly designated.

You can certainly amend the federal forms to address these issues, or clarify them in another document.

Many thanks to Liku Madoshi for her thoughtful evaluation of the federal certification forms with California issues in mind.