How employers will need to defend California employment lawsuits, Labor Commissioner actions and even arbitrations must evolve come the New Year due to changes in the law that become effective January 1, 2021. In this post, I identify and explain five important developments that businesses and their employment defense counsel need to be aware of and prepare for.

Managing a New Risk: Attorney’s Fees Awards to Whistleblowers

California Labor Code section 1102.5 sets out a broad basis for employees and former employees to sue their employers for alleged retaliation. Specifically, the statute authorizes employees to sue their employer for allegedly having suffered retaliation for complaining of the employer’s violation of a federal or state statute or a failure to comply with a federal, state or local legal requirement. The statute also allows employees to sue where they allege they suffered retaliation for refusing to participate on the job in a violation or noncompliance with the law.

Until now, section 1102.5 did not provide for prevailing employees to be awarded their attorney’s fees. That has now changed. Effective January 1, 2021, the court may award employees who win section 1102.5 claims their reasonable attorney’s fees, in addition to the employee’s potential recovery of penalties and being awarded reinstatement, back pay and damages.

The ability of 1102.5 plaintiffs to seek and potentially recover their attorney’s fees is a sea change in California retaliation litigation. First, in 1102.5 cases that are strong on the merits, plaintiffs’ ability to seek attorney’s fees awards, which, alone, may total six figures, may alter how the employer and its counsel assess the risk of such lawsuits and influence their litigation and settlement strategy. In short, particularly in strong retaliation cases, whatever risk of loss the employer feels it has will carry a greater price tag given the exposure to a fees award.

Secondly, retaliation cases with relatively smaller damages potential or that are tenuous on the merits may be viable cases for contingency fee plaintiff’s counsel given a premium to the case value they may feel the threat of recovering fees adds. In other words, potential 1102.5 cases that plaintiff’s counsel may have turned down in prior years may be cases plaintiff’s counsel now take and prosecute given the potential recovery of attorney’s fees.

Notably, employers who succeed in defeating 1102.5 lawsuits are not permitted by the new provision to be awarded their attorney’s fees against the plaintiff.

All things considered, we will see more 1102.5 actions brought because of this new prevailing plaintiff attorney’s fees provision, as well as employers and their litigators altering, in some cases, their risk assessment and strategy for resolving the cases.

The new attorney’s fees provision is added by an amendment to California Labor Code section 1102.5 made by Assembly Bill 1947 found here.

Claimants Involved in Arbitration will be Represented by the Labor Commissioner

As of January 1, 2021, where the employer files a petition to compel arbitration of claims pending before the California Labor Commissioner, the Labor Commissioner “shall have the right to represent the claimant in proceedings to determine the enforceability of the arbitration agreement,” regardless of whether the enforceability will be determined by a court or in arbitration. The new provisions require, of course, that the claimant ask for representation by the Labor Commissioner. The Labor Commissioner’s representation will be at no cost to the claimant.

Secondly, where a “wage claimant [is] unable to have their claim” decided by the Labor Commissioner because a court has ordered the claim to be arbitrated, “the Labor Commissioner shall represent the claimant” in the arbitration. Two conditions must be satisfied before the Commissioner is obligated to represent the claimant in arbitration, namely, the claimant must be “financially unable to afford counsel” and, secondly, the Labor Commissioner “determines, upon conclusion of an informal investigation, that the claim has merit.”  The new provisions do not otherwise limit the Labor Commissioner’s obligation to represent claimants in arbitration, whether by a minimum dollar sum in dispute or otherwise.

The COVID-19 pandemic continues to delay the Labor Commissioner’s processing of cases, with the Commissioner not yet burdened by the obligation to represent claimants involved in arbitration. There is certainly a question as to how effectively the Labor Commissioner will be able to meet its new arbitration-related obligations, at least so long as the pandemic hinders operations. Eventually, however, claimants’ right to counsel provided by the Commissioner could have the consequence of employers and their counsel confronting more capable opposition to petitions to compel arbitration and prosecution of claims in arbitration, particularly where claimants would not be able to hire private counsel.

The changes summarized above are amendments to California Labor Code section 98.4 made by California Senate Bill 1384 found here.

Claimants Gain More Time to File Claims with the Labor Commissioner

The time in which claimants will have to file claims with the California Labor Commissioner for having been “discharged or otherwise discriminated against in violation of any law” under the Commissioner’s jurisdiction is extended from six months to one year effective January 1, 2021. As a consequence, in some number of cases, employers will not receive notice of such claims and their need to garner evidence for a longer period after the firing or other adverse action.

The extension of time is an amendment to California Labor Code section 98.7 that authorizes, in brief, the Commissioner to investigate such claims and file suit against the employer for relief including reinstatement. The amendment is made by California Assembly Bill 1947 found here.

The Sleeper! Successor Businesses will Face Liability for Unpaid Wage and Hour Judgments

Come January 1, 2021, businesses that take over the facilities, workforce, management or other features of an earlier business, or retain managers or owners from the earlier business, “shall be liable for any wages, damages, and penalties owed to any of the (earlier business’s) former workforce” pursuant to a final judgment, along with the earlier business remaining liable, as well, on the judgment. This new statute has received little or no public attention from other leading California employment defense practices. I am confident, however, that this development will prove to be enormously important.

Under the new statute, a second business is a “successor” to the earlier business (the “judgment debtor”) and will be subjected to liability on wage and hour judgments against the earlier business where the successor:

  1. “Uses substantially the same facilities or substantially the same workforce to offer substantially the same services” as the judgment debtor.
  2. “Has substantially the same owners or managers that control the labor relations as the judgment debtor.”
  3. “Employs as a managing agent any person who directly controlled the wages, hours, or working conditions of the affected workforce of the judgment debtor.”

Or,

4.  “Operates a business in the same industry and the business has an owner, partner, officer, or director who is an immediate family member of any owner, partner, officer, or director of the judgment debtor.”

To be clear, this means that the successor business will be liable on a judgment entered in a lawsuit in which the successor was not a defendant and did not have the opportunity to defend itself. The new provision is obviously intended to prevent employers from avoiding liability for wage and hour violations by transferring the business operation into another corporation, selling the assets of the business, passing the business off to a family member, etc.

For businesses that may have been inclined to consider such transfers, the new statute may, first, dissuade them and, secondly, influence how they defend and, potentially, resolve significant wage and hour lawsuits.

In transactions involving the purchase and sale of businesses or their assets, the new statute will make all the more critical conducting exhaustive due diligence in order to ensure the prospective buyer identifies all wage and hour judgments against the prospective seller and resolving the liabilities before purchasing the seller’s assets.

The statute is new California Labor Code section 200.3, which is added by Assembly Bill 3075 found here.

The Trap! Expansion of the California Family Rights Act

The California Family Rights Act (CFRA) will expand in respects of historic magnitude effective January 1, 2021. Employers large and small are at risk of not keeping up with the changes and finding themselves in litigation.

CFRA provides eligible employees up to 12 weeks of job-protected, unpaid family care and medical leave each 12 months. Effective January 1, private sector employers with as few as five employees will be subject to CFRA, as opposed to CFRA applying to only employers of 50 or more employees as has been the law. Smaller employers are at risk of not fully understanding the scope and intricacy of their new obligations before the changes take effect.

CFRA will also require that eligible employees be given leave to care for ill grandparents, grandchildren and siblings for the first time as of January 1.

A more thorough explanation of the changes coming to CFRA effective with the New Year is provided in my post found here.

Closing

Being aware of simply the upcoming changes in California employment law is one thing. Appreciating how those changes should influence risk assessment and strategy in litigation is a different dimension. I hope these illustrations are helpful as you prepare for the New Year.

It may be the season for a pumpkin latte and too much candy, or finally breaking out those soft sweaters and fuzzy slippers as the weather starts to chill (even in Los Angeles).  But it is also the season for new lawsuits.  In fact, after 25 years of practice, experience tells me that new lawsuits are often filed toward the end of the calendar year.  The stakes are even higher this year due Covid 19’s devastating impact on so many sectors of the economy.  Desperate times for workers mean more lawsuits.  And California has a robust plaintiff’s bar ready to take on new matters.  So now more than ever, employers must be vigilant and ready.

Luckily, there are proactive steps California employers can take, and many of them are relatively straight-forward.  Some of this advice isn’t new, but if everyone was following it, I wouldn’t feel compelled to re-post!

First, update your policies and practices each year (or at least every two years).  Too often I see employers with handbooks, postings, or policies that haven’t been updated in five years, or sometimes more.  Just because the arbitration agreement or policy was compliant in 2012 doesn’t mean it is compliant in 2020!  Especially in California, things change; the law evolves.

Second, when you make a termination or layoff decision, document your rationale at the time the decision is made.  Ask yourself:  If I were this employee would I think this is fair, and if not, why not?  Put yourself in the employee’s shoes.  And then make sure all contemporary documentation answers those questions.  For example, take the time to research others terminated for similar reasons to show that this employee was treated consistently.  If the employee complained about something a long time ago, and that issue was resolved, make sure that is all documented and have clear evidence that it was not a consideration for the separation decision.  I am not a fan of those ultra subjective stack rankings as justification for layoff; I prefer real evidence on performance, like evaluations or sales figures.  Oh, and if the employee contests the termination or layoff (even after the fact), investigate it, and document what you looked into and found.

Third, if you are re-hiring, reinstating, or even hiring new employees, please review this helpful alert by my partner, Jeffrey Horton Thomas, with five practical tips on how to plan defensively.

Fourth, want to avoid class actions?  I have blogged on that one too.  Here’s how.

Finally, when an employee requests their personnel file and pay records, please be thoughtful before you provide the information.  Too often I see HR sending random information, and forgetting to include what is really important (like the arbitration agreement or the termination documents).  Remember, the employee or their attorney, is looking for problems.  So don’t make it easy for them!   Provide a full picture of what happened and why.  You can even give some additional helpful documents, nothing prevents that.  Please don’t give time records with the pay records.  It isn’t required by statute!  And finally, make sure to retain a copy of what you sent.

I know many of us are ready for 2020 to end.  As employers, let’s limit any further damage from 2020 and be proactive and ready for 2021.

Employers in California are subject to a layer cake of requirements to report suspected and diagnosed cases of COVID-19 in their workforce. Federal, state and local agencies each impose obligations differing from one to the other and most setting short deadlines for reporting. This blog post provides the information employers most need to know regarding the requirements in place statewide and in Southern California, in particular, along with suggested actions employers should consider in order to be prepared to comply.

[UPDATE AS OF OCTOBER 27, 2020:  The California Department of Public Health posted on October 16 and then updated on October 19, 2020, Q&A Guidance on complying with AB 685, which requires reporting of certain cases to local health departments, employees, any union representative and the employer of subcontracted employees.  The guidance may be found here and the Department’s definitions posted October 16, 2020 may be found here.]

Report COVID-19 Illness to Cal/OSHA — No Later Than Within Eight Hours

Employers must report to Cal/OSHA any “serious injury or illness” of an employee in California, including COVID-19, where the illness occurs in the workplace or in connection with work and requires inpatient hospitalization, according to the governing regulation. Hospitalization for any period satisfies that part of the requirement, although where the employee is hospitalized for only medical observation or diagnostic testing the employer is not required to report the case to the state.

Employers are required to report to Cal/OSHA any case of an employee suffering COVID-19 that qualifies as “serious illness” immediately, but no later than within eight hours of learning of the case or when they should have learned of it. Employers must report such incidents to their local Cal/OSHA district office.

Where an employer has cause to believe an employee’s death in the workplace or in connection with work was due to COVID-19, the employer is also subject to the reporting obligation.

Suspected Transmission of Coronavirus at Work

The obligation to report to Cal/OSHA is broad. For example, employers are not required to report only if the employee has been diagnosed with COVID-19 or the employer has confirmation that the employee contracted the virus at work. More broadly, employers are to report to Cal-OSHA where they have only “cause to believe” an employee may have contracted Coronavirus at work (and has been hospitalized), according to California Department of Industrial Relations guidance.

Factors employers should consider in determining whether they have “cause to believe” an employee may have contracted COVID-19 through work include:

— Whether there have been multiple cases of COVID-19 among workers at the place of employment.

— The extent to which the employee had contact through work with others, particularly the public.

— The extent to which the employee was protected by physical distancing and other government-approved COVID-19 prevention protocols in the workplace.

— Whether the employee had work-related contact with anyone who exhibited symptoms of COVID-19.

Suspected Infection Off the Job, but Illness at Work

Where an employee experiences serious illness while at work, including suspected COVID-19, but the employee likely contracted the virus off the job, the employer is also subject to the reporting requirement, according to the Department. In other words, employers are required to report cases of an employee exhibiting potential COVID-19 at work (so long as the employee was also hospitalized as discussed above) even where the employer has no evidence the illness is work-related. The Department’s position is that such circumstances constitute serious illness “occurring in” the workplace, and are thus subject to the reporting obligation.

Cal/OSHA prefers that employers report cases of COVID-related illness or death to the local Cal/OSHA district office by phone, but also accepts reports by email to caloshaaccidentreport@tel-us.com. An online tool for employers to identify their local office Cal/OSHA district office may be found here.

Report COVID-19 Death to OSHA — Within Eight Hours

Federal law requires that employers report to the Occupational Safety and Health Administration (OSHA) the death of any employee due to COVID-19 that occurs within 30 days of the employee’s exposure to Coronavirus at work. Employers must report such cases within eight hours of knowing both that the employee has died and that the cause of death was a work-related case of COVID-19.

Report COVID-19 Hospitalization to OSHA – Within 24 Hours

Employers must report to OSHA any employee having been admitted to a hospital as an in-patient where the hospitalization was due to COVID-19 and occurred within 24 hours of the employee’s exposure to Coronavirus on the job. Employers must make such reports to OSHA within 24 hours of learning both that the employee was in-patient hospitalized and that the reason for the hospitalization was exposure to the virus on the job.

Employers may report COVID-19 hospitalizations or deaths to OSHA by calling the nearest OSHA office, calling the OSHA 24-hour hotline at 1-800-321-6742 or online here.

On September 30, 2020, OSHA updated its Frequently Asked Questions on employer reporting obligations.

Report COVID-19 “Outbreak” to Local Public Health Departments – Within 48 Hours

As of January 1, 2021, employers will be required to report to local public health agencies any “outbreak” of COVID-19 in their workforce. For purposes of the new law, an “outbreak” in non-healthcare or non-residential congregate workplaces means three or more laboratory-confirmed cases of COVID-19 among workers who live in different households within a two-week period. Employers must make their reports to their local health department, which is most often the county health department, where the employees’ worksite is located, as well as to the local health departments where each of the diagnosed employees live. This requirement applies to all employers operating in California, regardless of how few or many employees they have.

My blog post last month more fully explains these new state-law requirements and gives action items to consider in preparing to meet these requirements. On October 7, 2020, the California Department of Public Health updated its COVID-19 guidance, including on the obligation to report outbreaks. The Department released on September 25, 2020 a helpful, 36-page “COVID-19 Employer Playbook” that provides guidance on the reporting obligation and other issues.  Also see October 27, 2020 Update at the top of this post.

Southern California Reporting Requirements

Los Angeles County

Owners, managers and operators of businesses in Los Angeles County who know of three or more cases of COVID-19 among their employees must report the outbreak to the Los Angeles County Department of Public Health under the County Public Health Officer’s current order, most recently updated on October 6, 2020. The order does not set a specific deadline by which businesses must report to the Department. Reports are to be made by phone to the Department at (888) 397-3993 or (213) 240-7821. Violations of the County order may be prosecuted as misdemeanors, according to the order.

San Diego County

Employers operating in San Diego County must “promptly notify” the County Health and Human Services Agency when they become aware of any employee with a laboratory-confirmed diagnosis of COVID-19, pursuant to the County Public Health Officer’s order updated effective October 10, 2020. Reports may be made online here or by calling 888-950-9905. Employers must report the name, date of birth and contact information of the employee. Violations may be prosecuted as misdemeanors, according to the order.

Orange County

Guidance released by Orange County provides that employers “should report” to the County Health Care Agency any cluster of three or more COVID-19 cases that occurs at a worksite within a two-week period. Reports are to be made by calling 714-564-8448. As of this posting, the Orange County Health Officer’s order, revised September 8, 2020, does not include a provision requiring employers to report COVID-19 cases among their workforces to the County.

Ventura and Riverside Counties

Likewise, as of this posting, the orders of Ventura County and Riverside County do not require employers to report COVID-19 cases among their employees.

Action Items to Consider

Takeaways from this post should include that a case of Coronavirus in the workforce may require an employer to make judgment calls about its reporting obligations within short deadlines and may require the employer to report any single case to more than one agency. In addition, employers should expect agency requirements to continue to evolve.

With those points in mind, action items employers should consider include:

  1. Identify now the agencies to which your organization may bear a reporting obligation. Make sure that someone in the business is responsible for monitoring for changes to the applicable reporting obligations or that you have engaged your employment counsel to do so.
  2. Implement systems to ensure that the information about your employees that may trigger an obligation for your organization to report is reaching the appropriate decision makers within the business and promptly.
  3. Train supervisors, managers and human resources personnel on the information and events that may trigger a reporting obligation that applies to your business.

This post provides general information and does not constitute legal advice to any person with respect to any circumstance. This post does not create an attorney-client relationship with any person.

[UPDATE: Guidance issued by the California Department of Fair Employment and Housing on these new requirements may be found here.

California employers with 100 or more employees are now required to file with the state detailed annual reports setting out demographic, pay and position information on their employees. As for the purpose of requiring the reports, Senate Bill 973 pulls no punches: state government agencies will use the reports against employers for “targeted enforcement” of California pay equity, anti-discrimination and wage and hour laws. Covered employers must file the first of their reports no later than March 31, 2021. Governor Gavin Newsom signed SB 973 into law last week.

The new requirements are similar in respects to the federal requirement to file EEO-1s. However, unlike the federal EEO-1 process, which has been troubled in recent years, SB 973 requires that employers feed data that may appear unfavorable directly to California state agencies that are among the most aggressive state agencies in the U.S. in enforcing employee-protective legislation. Employers must place a corresponding level of attention and priority on managing their reporting under SB 973.

The Employers Subject to the Reporting Requirements

Private sector employers that both have 100 or more employees and are required by federal law to file an annual Employer Information Report (EEO-1) are subject to the new California requirements. A summary of the federal requirements for who must file an EEO-1 is here. As you may know, the U.S. Equal Employment Opportunity Commission (EEOC) temporarily suspended the obligation to file EEO-1 data, in part, for reporting year 2019 as a step in alleviating businesses of administrative burdens during the Coronavirus pandemic. The new California legislation does not include any such reprieve; employers subject to SB 973 must file their California reports in full for reporting year 2020 no later than March 31, 2021.

The Data Employers must Report

The new legislation requires that covered employers file annually with the California Department of Fair Employment and Housing (DFEH) a “pay data report.” The report will set out the required information for all employees who were on the employer’s payroll in any single pay period of the employer’s selection in the last three months of the prior calendar year, referred to as the “reporting year.” For example, for its first annual report due by March 31, 2021 for reporting year 2020, a covered employer will select one payroll period within the timeframe from October 1 through December 31, 2020 as the period to be the subject of its pay data report – the “snap shot” payroll period.

The pay data report must set out, for employees on the payroll in the snap shot period, the number of employees by race, ethnicity and sex in each of the following 10 job categories: (1) executive or senior level officials and managers; (2) first or mid-level officials and managers; (3) professionals; (4) technicians; (5) sales workers; (6) administrative support workers; (7) craft workers; (8) operatives; (9) laborers and helpers; and, (10) service workers. All employees on payroll in the snap shot period – full and part-time, exempt and non-exempt — must be included. SB 973 does not define or provide descriptions of these job categories. The 10 job categories, however, are the same categories around which the federal EEO-1 is organized. EEOC guidance for understanding how that agency construes the job categories for purposes of the EEO-1 found here.

Apart from the demographic information of employees in each job category, SB 973 also requires that the California pay data reports set out the number of employees, by race, ethnicity and sex, whose annual W-2 earnings for the reporting year fall within each of the pay bands used by the U.S. Bureau of Labor Statistics. The employer must also include the total number of hours worked by each employee counted in each pay band during the reporting year.

Importantly for employers, the pay data reports will include a section “to provide clarifying remarks” regarding any data employers report. This provision is likely to become an important tool for employers who see strategic advantage in placing required data in context or volunteering additional information in order to attempt to pre-empt an agency drawing mistaken conclusions from data disclosed in a particular pay data report.

SB 973 permits employers to submit their federal EEO-1 to the state as compliance with the new state legislation so long as the EEO-1 contains “the same or substantially similar” information required by SB 973.

Employers with Multiple Production Sites

Employers with more than one “establishment,” meaning “an economic unit producing goods or services,” must file one pay data report for each establishment and a consolidated report that covers all employees at all sites. An employer with manufacturing sites, retail outlets, or facilities providing services to consumers in different cities or from multiple locations within a city are required to file one report for each location plus a consolidated report encompassing all employees at all locations. By its terms, SB 973 covers all such “establishments,” regardless of how many or few employees work there.

While federal law requires covered employers to file an EEO-1 specifically concerning employees at their headquarters, SB 973 is silent on whether the new California law views a company headquarters – not itself directly “producing goods or services” – as an “establishment” with respect to which a pay data report must be filed.

California Agencies will Use the Reports in Enforcement Actions against Employers

Discrimination and Pay Equity Actions

Employers will file their pay data reports with the California Department of Fair Employment and Housing, the agency charged with enforcing California state laws barring unlawful discrimination in employment. The new legislation clearly contemplates the DFEH using pay data reports in investigations and enforcement actions against employers under the California Fair Employment and Housing Act (FEHA), the state-law scheme barring discrimination in employment on grounds including race, ethnicity and sex.

In an important development that is being widely overlooked by others writing on SB 973, the new legislation also for the first time empowers the DFEH to accept, investigate and prosecute complaints against employers for violations of the California Fair Pay Act. The Fair Pay Act requires, in brief, that employers pay employees equally for substantially similar work, regardless of an employee’s sex, race or ethnicity. This aspect of the new legislation is a significant expansion of DFEH jurisdiction. Employers and their counsel will now find themselves defending pay equity claims under the Fair Pay Act before the DFEH, a new front for pay equity cases in California. Further, SB 973 permits the DFEH to use pay data reports in investigations and administrative enforcement actions against employers for alleged violations of the Fair Pay Act.

Wage and Hour Actions

The new legislation authorizes the California Labor Commissioner’s Division of Labor Standards Enforcement (DLSE) to obtain employers’ pay data reports from the DFEH on request – and without telling the subject employers. The DLSE enforces California wage and hour law including claims for violations of state minimum wage law and for unpaid wages, unpaid overtime, etc. SB 973 makes clear that the DLSE is given access to the reports in order to use them in investigations and enforcement actions against employers.

Employers should expect the DFEH and DLSE to audit pay data reports looking for what appear to be patterns by industry or within a specific business of discrimination in hiring; glass ceilings impairing the promotion of employees because of their gender, race or ethnicity; or disparities in pay for similar work because of such characteristics. Employers, likewise, should expect the agencies to prioritize industries and employers for investigation and enforcement where pay data reports, alone or along with information from other sources, give the appearance of unlawful employment practices.

Employer Reports are to be Confidential – with Limits

The new legislation designates “individually identifiable information” disclosed on employers’ pay data reports as “confidential” and not to be made “public in any manner whatever,” unless otherwise allowed by the new law. “Individually identifiable information” under the new law means data “that is associated with a specific person or business.” The phrase “or business” should prove important to employers, as it should establish a general rule that no information from employers’ pay data reports can be released if it identifies, “is associated” in any way with or may be used to identify a particular employer. SB 973 goes further and provides that individually identifiable information will not be released pursuant to requests to the DFEH or DLSE under the California Public Records Act.

All that said, SB 973 allows the DFEH or the DLSE, in any particular case, to make public individually identifiable information once the agency begins an investigation or enforcement action “involving that information.” However, in those circumstances, the agency may disclose the information “only to the extent necessary for purposes of the enforcement proceeding.” This language should be construed in the future to mean that neither the DFEH nor the DLSE may release individually identifiable information unless and until one or the other starts an enforcement action (not merely an investigation) and, in that instance, only within the enforcement proceeding and only to the extent “necessary” to that proceeding.

Beyond the rules set out above, the operative provisions of SB 973 do not include any provision authorizing plaintiff’s counsel to obtain an employer-defendant’s pay data reports through discovery in litigation in court or arbitration. I can certainly make forceful arguments that an employer-defendant’s pay data reports should not be available in discovery to plaintiff’s counsel in litigation. Undoubtedly, battles over that question will be fought soon.

Where Employers Fail to File Pay Data Reports

SB 973 equips the DFEH to pursue employers who do not file their reports as required. First, the new legislation authorizes the DFEH to obtain from the California Employment Development Department (EDD), on demand, lists of the names and addresses of all businesses in California with 100 or more employees for the DFEH’s use “in order to ensure compliance” with the new reporting requirements. Where an employer fails to file a required report, the DFEH is empowered to sue the employer for an order that the employer comply and, where the DFEH prevails, the employer will be ordered to pay the DFEH its costs incurred in seeking compliance.

Action Items to Consider

SB 973 becomes effective January 1, 2021. Employers who will be subject to the new requirements should consider the following action items:

  1. Monitor press releases from the DFEH and its website for information describing the system it will implement and require employers to use to submit their pay data reports. The system should be an online portal. Become familiar with the system well in advance of the March 31, 2021 filing deadline.
  2. Ensure now that you are compiling the data that must be included in the pay data reports. Involve IT early in the process in order to build an efficient, user-friendly system for compiling the required information and interfacing efficiently with the DFEH system.
  3. Involve employment counsel, either in-house or from the outside, early in the process of compiling the required data and reviewing your draft pay data report. Qualified, experienced employment counsel are needed to help identify the appearance of any potential pattern or discrepancy that may draw the attention of the DFEH or DLSE. Counsel’s input is needed in order to best determine whether to include the optional, pre-emptive comments in the pay data report and if so, to craft the comments; or, to make the strategic decision to hold back without comments and keep all options open for when and if an agency launches an investigation.

This post provides general information and does not constitute legal advice to any person with respect to any circumstance. This post does not create an attorney-client relationship with any person.

Employees who suffer physical or mental injury due to a crime will be entitled to job-protected leave and other protections from their employers under legislation signed this week by Governor Gavin Newsom. Employers will bear such obligations without confirmation from law enforcement that a crime occurred and where no one is arrested or prosecuted. Prior to the Governor’s approval of the new legislation, only employees victimized by domestic violence, sexual assault or stalking were entitled to such protections. The expanded provisions become effective January 1, 2021.

New Obligations of All Employers, Regardless of Size

Expanded Obligation to Provide Time Off Work to Seek TROs, etc.

Prior to approval of the new legislation, AB 2992, California Labor Code section 230 barred employers of any size from firing or discriminating against employees victimized by domestic violence, sexual assault or stalking for missing work to seek judicial relief, including restraining orders against perpetrators.

AB 2992 extends such protection to any employee who is (1) the victim of a crime that either caused physical injury or that caused mental injury and included a threat of physical injury; and, (2) any employee whose immediate family member died due to a crime. The new legislation broadly defines “crime” to mean “a crime or public offense, wherever it may take place, that would constitute a misdemeanor or a felony if the crime had been committed in California by a competent adult” and “regardless of whether any person is arrested for, prosecuted for, or convicted of, committing the crime.”

As for employees whose families suffer a crime-related death, the new provisions embrace a great many people as “immediate family members,” including any variety of child (biological, adoptive, foster, etc.), parent (biological, adoptive, foster, stepparent, etc.), sibling (biological, foster, half-sibling, etc.) and partner (whether married or a registered domestic partner). Also included is “any other individual whose close association with the employee is the equivalent of a family relationship  . . .”

When employees miss work without advance notice to seek a restraining order or other judicial relief due to a crime, AB 2992 will obligate employers to treat them with greater leniency. An employee missing work in that circumstance will be protected from discharge or other discrimination so long as, “within a reasonable time after the absence,” they give their employer a writing signed by the employee, or someone on the employee’s behalf, stating the employee missed work in order to seek a restraining order or other relief due to a crime. Prior to AB 2992, Labor Code section 230 protected employees missing work without advance notice only where they promptly gave the employer a police report, evidence the employee appeared in court or medical certification that the employee was undergoing medical treatment for injuries.

Expanded Prohibition of Crime-Victim Status Discrimination

Employers will also be broadly prohibited from firing an employee or otherwise discriminating or retaliating against them because of the employee’s status as the victim of a crime or abuse, under amendments to section 230 made by AB 2992.

New Leave Obligations for Employers of 25 or More Employees

AB 2992 imposes additional new obligations on employers of 25 or more employees. Under the new provisions, employees who either are crime victims or have suffered the death of an immediate family member will be entitled to job-protected leave in order to: (1) seek medical attention for injuries caused by the crime or abuse; (2) obtain services from a domestic violence shelter, program, rape crisis center or victim services organization or agency as a result of the crime or abuse; (3) obtain psychological counseling or mental health services related to the crime or abuse; or (4) participate in safety planning or take other actions to increase safety from future crime or abuse.

“Crime,” “victim” and “immediate family members” have the same meaning in Labor Code section 230.1, as amended, as they will in Labor Code section 230, as amended.

Prior to the signing of AB 2992, employers of 25 or more employees were obligated to provide such job-protected leave to only employees subjected to domestic violence, sexual assault and stalking.

Where it violates Labor Code sections 230 or 230.1, an employer may be ordered to reinstate the employee and reimburse the employee for all lost wages and benefits. Employees and former employees may file their complaints of violations with the California Labor Commissioner.

Action Items to Consider

Employers should consider the following steps well before the changes made by AB 2992 become effective on January 1, 2021:

  1. Revise applicable policies and circulate them no later than January 1, 2021. In fact, Labor Code section 230.1 requires employers to “inform each employee of their rights” under that section and Labor Code section 230. Be on the lookout for a new notice form the Labor Commissioner should develop and release.
  2. Educate first line supervisors, managers and HR staff on these changes. A supervisor or manager who is unaware of these changes and takes action against an employee in violation of their new rights may prove costly to the company.
  3. If you feel uneasy or have questions about any situation that may involve these developments, please reach your Fox Rothschild LLP attorney. We are here to help.

This post provides general information and does not constitute legal advice to any person with respect to any circumstance. This post does not create an attorney-client relationship with any person.

Effective January 1, 2021, California employers must report to their workforces instances in which employees may have been exposed to COVID-19 and to local public health departments any “outbreak” of three or more employees having COVID-19. The requirements are extensive and the potential liability for violations is great. Employers should begin to prepare early to comply with AB 685, signed into law by Governor Gavin Newsom on September 17, 2020.

Employers must Notify Employees of Potential COVID-19 Exposure

Under AB 685, where an employer receives “notice of potential exposure” of an employee to COVID-19, the employer is obligated to notify employees in writing within one business day of extensive information, explained below.

What Triggers the Employer’s Obligations

Understanding the new obligations requires first understanding “qualifying individual” as used in the new legislation. A “qualifying individual” under AB 685 means any person who (1) has a laboratory-confirmed case of COVID-19 or a positive COVID-19 diagnosis from a licensed health care provider; (2) is under a COVID-19-related order to isolate issued by a public health official; or (3) died due to COVID-19.

“Notice of potential exposure,” in turn, means notice to the employer of any of the following occurring:

An employee was exposed to a qualifying individual at the worksite (apparently, regardless of whether the qualifying individual was there as a customer, vendor, visitor or otherwise). In order to constitute “notice of potential exposure” on this basis, the employer must have received this information from a public health official or licensed medical provider.

An employee is a qualifying individual, where the employer received this information from the employee, their emergency contact or through the employer’s testing protocol.

A qualifying individual (such as a subcontracted worker) was at the worksite, where the employer received this information from a subcontracted employer.

Thus, zooming upward to a flying high perspective, “notice of potential exposure” means, broadly speaking, the employer receiving notice that an employee has or had COVID-19, an employee was exposed to someone on the worksite suffering COVID-19 or that a subcontracted worker or other person with COVID-19 was onsite.

The Employer’s Obligations

Where the employer receives notice of potential exposure, the employer must — within one business day — take all of the following actions:

— Notify “all employees,” and the employers of subcontracted employees, who were at the worksite with the qualifying individual within the infectious period that they may have been exposed to COVID-19. The employer’s notice must be in writing and in both English and the language understood by the majority of the employees, if not English. The notice must be given in a manner the employer normally uses to communicate employment-related information. The notice may be given, for example, by email, text message or personal service, so long as it can be reasonably expected that employees will receive the notice within one business day of the employer sending it.

— Notify any union representative of the same information.

— Give all employees who may have been exposed and their union representative, if any, information regarding COVID-19-related benefits available under federal, state or local law, including workers’ compensation, leave rights, paid sick leave and supplemental paid sick leave rights, negotiated leave provisions and anti-retaliation and anti-discrimination protections for employees.

— And finally, notify all employees, the employers of subcontracted employees and any union representative of the disinfection and safety plan the employer plans to implement and perform pursuant to Centers for Disease Control guidelines.

Obviously, advance preparation is necessary for employers to comply with these requirements. Employers must compile a great body of information, possibly have information translated from English into the language used by most of the employees and be prepared to convey the information to a great number of people within one business day of learning they must give notice. One aspect of the preparation, of course, is that employers must ensure they have current contact information – email addresses, cell phone numbers and addresses – for all of those to whom they may need to give notice, including all employees.

Costly Civil Penalties

AB 685 authorizes the California Division of Occupational Safety and Health to award civil penalties against employers who violate the notice requirements in sums of up to $12,471 per violation where the violation is not deemed “serious,” up to $25,000 for a serious violation and up to $124,709 where a violation is found to be willful or repeated.

Notice Requirements Where an “Outbreak” Occurs in the Worksite

Where an employer learns of the number of cases that meet the definition of an “outbreak” in a workplace, the employer must – within 48 hours — notify the local public health agency of certain information. On September 18, 2020, the day after Governor Newsom signed AB 685, the California Department of Public Health updated guidance that includes its definition of “outbreak.” For purposes of AB 685, the Department defines an “outbreak” as three or more laboratory-confirmed cases of COVID-19 among workers who live in different households within a two-week period. This is the controlling definition of “outbreak” for employers at this time, regardless of the size of the workforce, the size or characteristics of the worksite or other factors.

In the event of an outbreak, the employer must notify the local public health agency in the area of the subject worksite of the address and NAICS code of the worksite. If any subsequent laboratory-confirmed cases of COVID-19 arise at the worksite, the employer must notify the local agency. Where the outbreak includes a COVID-19 fatality, the employer must also give the local public health agency the names, number, occupation and worksite of the deceased employees.

A helpful guide from the California Department of Public updated this month for employers preparing for and responding to outbreaks may be found here.

Privacy Obligations to Employees

The new provisions include privacy protections for employees. The protections make it unlawful for employers to require employees to disclose medical information unless otherwise required by law. In addition, the legislation provides that no personally identifiable employee information may be made public or posted nor subject to a California Public Records Act request, posted on a public internet site or shared with any federal agency or any state agency other than the State Department of Public Health.

Anti-Retaliation Provision

The new legislation prohibits employers from retaliating against a worker for disclosing a positive COVID-19 test or diagnosis or order to quarantine or isolate. Employees who feel they have suffered retaliation may file complaints with the California Labor Commissioner and, if they prevail, be awarded a civil penalty of $10,000, reinstatement, lost wages and attorney’s fees under Labor Code sections 98.6 and 98.7.

Express Authority to Shut Down Business Operations that Pose COVID-19 Risk

AB 685 grants the California Division of Occupational Safety and Health express authority to close any business “operation or process,” and bar “entry into such place of employment,” where the Division finds that “a place of employment, operation or process” exposes workers to a risk of Coronavirus infection constituting “an imminent hazard to employees.” Such actions are to be “limited to the immediate area in which the imminent hazard exists.”

Recommended Actions to Consider

Now, only about three months from AB 685 becoming effective, employers may wish to consider actions including:

  1. Compile and translate, if needed, the information to be given to employees, union representatives and any employers of subcontracted employees in the event you, as the employer, are given notice of potential exposure.
  2. Give thought to the means by which you will give notice to “all employees” and others if you receive notice of potential exposure – email, text, etc. Ensure that you have and maintain current contact information for everyone to whom you may need to give notice.
  3. Prepare a written action plan to follow in the event of an outbreak or notice of potential exposure is received. The plan should make clear who is responsible for performing each action item and the timeline. Brief all responsible personnel fully on their role in advance.
  4. Tirelessly enforce workplace Coronavirus prevention protocols. The best strategy is to do what you can to prevent circumstances arising in which you must comply with the new notice requirements.

Newly signed legislation makes it easier and faster for employees to obtain workers compensation benefits for contracting COVID-19. The statutes, which went into effect on Governor Gavin Newsom’s signing of SB 1159 on September 17, 2020, impose important new obligations on employers.

The legislation provides that a “disputable presumption” will arise in certain circumstances that employees who suffer illness or death due to COVID-19 contracted Coronavirus on the job and that the injury is compensable through workers compensation. Of all aspects of SB 1159, it is the codified presumption that has received the most attention.

However, SB 1159 places on employers’ backs more than the presumption that COVID-related claims are compensable. Here, while I unpack the presumption, I also explain other less publicized requirements imposed by SB 1159 as they also call for employers’ immediate attention.

Presumption that COVID-19 is a Compensable Workers Compensation Injury

SB 1159 establishes a presumption that illness or death resulting from COVID-19 arose out of and in the course of employment. Employers may dispute the presumption with evidence, for example, of the measures in place to reduce potential transmission of Coronavirus in the workplace, evidence of the claimant’s risks of exposure outside of work, admissions by the claimant and otherwise.

The legislation also subjects employers to tight deadlines to reject COVID-19-related claims or suffer a further presumption in employees’ favor. If the date of injury is July 5, 2020 or earlier, the employer has only 30 days to reject the claim. If the date of injury is July 6, 2020 or later, the employer has 45 days to deny the claim. In the workers compensation context, these deadlines are short fuses.

Where the claimant is a front line worker — such as a firefighter, peace officer, medical professional and others — the employer has 30 days to reject the claim, regardless of the date of injury.

Where an employer fails to reject a COVID-19-related claim on time, a presumption arises that the injury is compensable. The presumption may be rebutted, but only with evidence that the employer discovered subsequent to the deadline for rejecting the claim.

These deadlines place employers under immediate pressure, upon submission of a COVID-19-related claim, to investigate and determine whether there exists evidence upon which to reject the claim and attempt to avoid the presumption against the employer.

The Covered Employees

The presumptions summarized above are available to claimants (1) who test positive during an “outbreak” (as defined) at the claimant’s specific place of work (e.g., building, store, facility or agricultural field where the employee worked); and (2) whose employer has five or more employees. In addition, all of the following circumstances must also apply:

— The employee tests positive for COVID-19 within 14 days after a day the employee worked at the employee’s place of work;

— The day the employee worked at the place of work was on or after July 6, 2020; and,

— The employee tested positive during an “outbreak” at the employee’s specific place of work.

What is an “Outbreak” under SB 1159

Under the new legislation, an “outbreak” exists if, within 14 days, one of the following occurs at a specific place of employment:

— If the employer has 100 employees or fewer at the place of employment, at least four employees test positive;

— If the employer has more than 100 employees at a specific place of employment, four percent of the number of employees who reported to the specific place of employment test positive; or,

— One of the government agencies named by SB 1159 orders a specific place of employment to close.

Mandatory Reporting of COVID-Infected Employees – and $10,000 Penalty!

Under the new legislation, whenever an employer “knows or reasonably should know that an employee has tested positive for COVID-19,” the employer must within three business days report specified information to their workers compensation claims administrator about the Coronavirus-infected employee. The new statute requires that the employer send the report by email or fax.

The following information must be reported:

— The fact that an employee has tested positive. Information identifying the employee is not to be reported, unless the employee “asserts the infection is work related” or has filed a workers compensation claim;

— The date the employee tested positive, which is the date the specimen was collected;

— The address of each building, store, facility or agricultural field where the employee worked within 14 days prior to the date the employee tested positive; and,

— The highest number of employees who worked at each location where the infected employee worked in the 45 days before the last day the employee worked there.

Claims administrators are to use the information reported to determine if an outbreak has occurred at a specific place of employment.

Employers are subject to a $10,000 civil penalty where they fail to report required information or intentionally submit false or misleading information. The penalty also may be imposed on any “person acting on behalf of an employer” breaching the reporting requirement. The Labor Commissioner is empowered to issue citations and impose the penalty.

Employers may challenge a citation and penalty through an expedited “informal hearing” before a Labor Commissioner hearing officer. Where employers are dissatisfied with the hearing officer’s ruling, they may seek relief by way of a writ of mandate from the Superior Court. Importantly, however, where the employer is unsuccessful in the writ proceeding, the employer will be liable to the Labor Commissioner for attorney’s fees and costs, as well as the penalty affirmed by the Commissioner’s hearing officer. Challenging a hearing officer’s ruling in court, thus, risks the employer digging itself into a deeper financial hole.

Given the potential exposure, it is imperative that employers promptly become familiar with the reporting requirement and put in place systems ensuring they comply.

Requirement to Report Employees Infected before SB 1159 was Signed

The provisions described above require reporting of employees who test positive going forward, that is, after the new legislation went into effect. SB 1159 also requires that employers now report employees who tested positive for the virus before SB 1159 went into effect, specifically, those who tested positive any time from July 6, 2020 through the legislation going into effect. Reports on such earlier infected employees must be submitted to claims administrators within 30 days of SB 1159 becoming effective. There is some difference in the information to be reported on the earlier infected employees.

SB 1159 will be Repealed as of January 1, 2023

SB 1159 enacts new Labor Code sections 3212.86, 3212.87 and 3212.88. The statutes remain in effect until January 1, 2023, when they are repealed by their terms.

Consider these Actions

Recommended actions to consider include the following:

  1. Employers should determine whether they know of any employees who tested positive in the relevant period before SB 1159 became effective and timely report as required to their claims administrator within approximately the next three weeks.
  2. As for reporting employees who test positive going forward, employers must become familiar now with the reporting requirement and implement procedures that will ensure they make the required reports on time to their claims administrator.
  3. Employers may find it prudent to work out with their claims administrator a specific procedure for making the reports.
  4. Where employees test positive, employers should act quickly to investigate and capture evidence that may be useful in disputing the presumption that the employee contracted the virus on the job.
  5. Particularly in light of the new statutory presumptions and tight deadlines for rejecting COVID-19-related claims, SB 1159 is one more compelling reason for employers to remain vigilant in adhering to generally accepted Coronavirus prevention protocols.

Small employers in California – those with only five employees or more – will be obligated to provide eligible employees up to 12 weeks of family care and medical leave each 12 months under a bill Governor Gavin Newsom signed into law this week. Also for the first time, employers will be required to grant family leave to employees to care for their ill grandparent, grandchild or sibling. These new requirements and other changes to the California Family Rights Act (CFRA) become effective January 1, 2021.

The bill Governor Newsom signed, SB 1383, on Thursday, September 17, amends CFRA. CFRA requires employers to provide eligible employees up to 12 workweeks of unpaid leave each 12-month period. The leave can be taken because of the employee’s own serious health condition, to care for specified family members facing medical challenges or to care for a child. In order to be eligible for the leave, the individual must have been employed by the employer for at least 12 months and have worked at least 1,250 hours in the 12 months before commencing leave.

To date, CFRA largely mirrored the federal Family Medical Leave Act (FMLA), including with respect to the employers covered, the criteria for employees to be eligible for leave and the amount of job-protected leave provided. Because of the amendments made by SB 1383, though, CFRA’s footprint grows beyond that of the FMLA. The California law is now set to reach countless small employers not subject to the FMLA and provide leave in circumstances where the FMLA does not.

The changes made to CFRA by SB 1383 are historic in magnitude. They include the following:

Small California Employers will now be Subject to CFRA, though not the FMLA

Prior to the Governor signing SB 1383, only private sector employers of 50 or more employees and state and local government agencies were subject to CFRA. As of January 1, 2021, however, CFRA will encompass countless employers of only five employees or more across the state. The many small employers soon to be subject to CFRA will learn that the law’s requirements are intricate and subject to tight deadlines. The risks to small employers — particularly those who do not invest the time needed to become familiar with the Act’s requirements — are significant.

Despite CFRA’s expanded reach, the FMLA will continue to encompass private employers only if they employ 50 or more employees. Because of the Governor’s approval of SB 1383, many smaller California employers will become subject to CFRA, but remain beyond the reach of the FMLA.

CFRA Leave for Employees to Care for an Ill Grandparent, Grandchild or Sibling

Because of SB 1383, an eligible employee for the first time will be entitled to CFRA leave to care for their ill grandparent, grandchild or sibling. SB 1383 also expressly adds domestic partner as a family member whose illness entitles eligible employees to CFRA leave. Prior to SB 1383, the ill family members for whom an employee could take CFRA leave were the employee’s parent, spouse or child.

CFRA also provides leave for the birth of an employee’s child or placement of a child with an employee in connection with adoption or foster care. SB 1383 adds the “child of a domestic partner” to CFRA’s definition of “child.” By doing so, SB 1383 adds a new category of “child” with respect to whom an employee may be entitled to leave, either to care for or for bonding.

Thus, as of January 1, California employers will be required to grant CFRA leave for the care of employees’ family members not previously encompassed by CFRA.

The FMLA, in contrast, does not require employers to grant leave to an employee to care for a grandparent, grandchild or sibling. As a consequence, upon SB 1383 becoming effective, California employers may be confronted with employees requesting CFRA leave to care for, say, a grandparent, and later in the same 12-month period requesting FMLA leave to care for a parent or spouse. In that event, a question will arise as to whether the employee is entitled to a total of 24 weeks of leave in one 12-month period, namely, 12 weeks under CFRA and an additional 12 weeks under the FMLA.

The Key Employee Provision under CFRA is Removed

Prior to SB 1383, CFRA authorized employers to deny reinstatement to “key employees” seeking to return from CFRA leave. In order to constitute a key employee, the person must be a highly paid, salaried employee. Secondly, the employer must be able to demonstrate that refusing to reinstate the employee in the same or a comparable position is necessary to prevent “substantial and grievous economic injury” to the employer. In other words, the employer must be able to prove that it cannot wait for the employee on leave to return, that because of the importance of the role, the employer must replace the employee on leave with a new employee in the position.

Significantly, SB 1383 deletes the key employee provision from CFRA, taking from employers as of January 1, 2021 the ability to fill the positions of critical, high-ranking employees during their leave and declining to reinstate them to their prior position when they wish to return.

The FMLA retains a key employee provision that is similar to CFRA’s current, but short-lived, key employee provision.

California’s New Parent Leave Act is Repealed

The New Parent Leave Act requires subject employers to provide eligible employees with up to 12 weeks of unpaid leave to bond with a newborn child, adopted child or foster child. Employers of between 20 and 49 employees are subject to the Act. The Act became effective less than three years ago on January 1, 2018.

The purpose of the Act was to make such baby-bonding leave available to employees who could not take leave under CFRA because they worked for employers with less than 50 employees, the coverage threshold at the time for CFRA.

In making employers of only five or more employees subject to CFRA, SB 1383 renders the New Parent Leave Act redundant. For that reason, SB 1383 expressly repeals the New Parent Leave Act effective January 1, 2021.

Action Items

Employers who will be subject to CFRA as of January 1, 2021 should prepare to comply. Actions to consider taking include:

  1. Small employers who will be subject to CFRA for the first time as of January should familiarize themselves with the law’s requirements well in advance of the January 1, 2021 effective date.
  2. All employers encompassed by CFRA as amended should update their CFRA policies and eliminate any policy intended to comply with the New Parent Leave Act. Employers should circulate updated policies to employees no later than January 1, 2021.
  3. Employers should train human resources personnel and any supervisory employees who may receive requests for CFRA leave or questions from employees.
  4. Employers should review and likely update the form Notice of Eligibility and Rights and Responsibilities and form Designation Notice they have been using to ensure compliance with CFRA, as amended.

The Governor’s signing of SB 1383 subjects an untold number of small employers throughout California to the requirements of CFRA and further complicates for employers big and small the already intricate, risky landscape of leave law. Employers should begin to prepare early in order to avoid costly mistakes.

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.