With restrictions beginning to soften following the months-long COVID-19 crisis, and producers eager to get back to production, but daunted by the economic and legal challenges of the pandemic production protocols, Fox Rothschild has launched a pro bono initiative to support financially impacted producers and production companies.  Earlier this week, a cross-country, collaborative team of Fox attorneys discussed the challenges of getting back to production. Here is a list of the filming restrictions we discussed as well as some frequently asked questions about employment issues on set.

Special thanks to summer associate Katherine Khazal for her tireless research assembling the list of jurisdictional filming restrictions.

For more information about our pro bono services, please email gettingbacktoproduction@foxrothschild.com.

With so many businesses either re-opening or planning to reopen in California, let’s not forget that all employees (not just supervisors) must be trained in harassment prevention before year end.  Yes, that’s right, all employees.

Some good news.  The DFEH finally has a free online tool for that training.  I spent an hour watching it yesterday, and it was pretty entertaining.  It has some videos produced by David Schwimmer, #thatsharasssment, that are quite good.  It also uses a video from New York’s free harassment online tool that covers gender identity issues in a very compelling way.  It is broken up with vignettes and quizzes.  And it is available in six languages (English, Spanish, Korean, Chinese, Vietnamese, and Tagalog).  Overall, a terrific resource.

As you re-onboard employees post Covid-19, you might just want to make this session part of your new hire orientation.  Or have your remote employees take it now and get it out of the way.  Don’t forget to keep records of the training, as it will be required every two years.

There is no free supervisory training yet from the DFEH, but that might be coming soon.  In the meantime, we can do that!

On May 4, 2020, Los Angeles Mayor Eric Garcetti signed two new ordinances into law, affecting specified hotels and their restaurants, event centers, commercial properties, and airport services.  The Right of Recall Ordinance forces employers in these specified industries to rehire certain laid off workers, rather than allowing the rehire process to proceed at the employer’s discretion.  The Worker Retention Ordinance provides that employers in these industries must provide seniority preferences to workers in the event of a change in business ownership or control within two years of the City of Los Angeles’s COVID-19 emergency declarations.  For more information on these Los Angeles ordinances, see our previous alert.

Following in Los Angeles’ footsteps, on May 19, 2020, the City of Long Beach adopted its own Right of Recall Ordinance and Worker Retention Ordinance, both largely mirroring the Los Angeles ordinances.

Luckily, unlike the Los Angeles ordinances, the two Long Beach ordinances apply only to the following limited industries:

  • Commercial Property Employers located in the City of Long Beach that provide janitorial services and employ at least 25 employees
  • Hotel Employers including anyone who owns, controls, or operates a hotel in the City of Long Beach and employs at least 25 employees who provide services at the hotel in association with the hotel’s purpose

The Right of Recall Ordinance requires that these employers rehire workers who have been laid off due to “a lack of business, a reduction in work force, bankruptcy, or other economic, non-disciplinary reason.”

As with the Los Angeles Right of Recall Ordinance, affected employers in Long Beach must make a written offer of employment (by mail, email, and text message) for any position that is or becomes available for which the worker is qualified.  To be eligible for recall, a laid off individual must have either: (a) held the same or similar position at the same employment site at the time of the most recent separation; or (b) be qualified or capable of being qualified for the position by receiving the same training that a completely new hire would receive for the position.

Also as in Los Angeles, if two or more laid off workers are eligible for recall for the same open position, employers in the above-specified industries must give priority based on seniority to the worker with the greatest length of service for the employer (i.e., holding the same or similar position at the same employment site).

Workers offered recall to employment must be given five days to accept or reject the offer of employment.

The accompanying Worker Retention Ordinance orders that in the event of a change in control or ownership of a commercial property or hotel business, those employed on or after March 4, 2020 by the incumbent business, must be placed on a “preferential hiring list.”  The new business must hire workers from this preferential hiring list for at least six months and must retain them for at least 90 days, during which, a rehired employee cannot be fired without cause.

Both ordinances will become effective on June 22, 2020.

We anticipate that other cities may enact similar ordinances.

On this sunny Saturday the County of Los Angeles has opened for business just a little bit more.

Angelenos can go to a restaurant (preferably with patio seating), and have a burger and a beer served to them by a server in a mask and a face shield.  The guests must also wear a mask when not eating.  Tables must be six feet apart, and restaurants are limited to 60% capacity.  Best to make a reservation.   And no, you can’t sit at the bar or counter.

Los Angeles County has published a detailed checklist of requirements for restaurants.  Any restaurant planning to open for on-site dining should pay close attention to the checklist, and monitor the LA County website for updates.

Before or after your burger and beer, Angelenos can also finally get a haircut and color!  Just make an appointment (no walk-ins), and bring your mask with earloops so you can wear it while the stylist or barber fixes you up.  S/he will be in a mask as well, and will be servicing only one customer at a time.  But no threading or waxing of the eyebrows and no eyelash services allowed.  There are also a whole set of rules for hair salons, and another handy checklist.  Salon owners and operators should also pay close attention and monitor the LA County website.

These checklists and other notices must be posted at the restaurant/salon and given to each employee.  Details about steps taken to protect the public must also be posted on the establishment’s website.

Are you also ready for a mani/pedi, facial or massage?  Not yet.  Nail salons are still closed in LA County, as are massage parlors, bowling alleys, movie theaters, and beach piers.

One more step closer to normal.  Stay safe!

Effective Minimum WageJuly 1, the minimum wage jumps up yet again in localities throughout California. The minimum wage hikes come in the midst of a pandemic and one of the most difficult economic periods in decades when many employers are already struggling.

The July 1 increase will elevate the minimum wage to $15 per hour for some or all employers in locations including the City and County of Los Angeles and the cities of Malibu, Santa Monica, Pasadena, Alameda City, Fremont, Novato, San Leandro, and Santa Rosa.

Perhaps surprisingly, only two cities in California have delayed their minimum wage hikes scheduled for July 1 due to the economic and operational burdens COVID-19 is imposing on businesses. The city councils of Hayward and San Carlos, each located in the San Francisco area, voted in late March and April, respectively, to delay minimum wage increases that had been previously set for July 1 by their local ordinances.

Although set by their respective ordinances, the County of Los Angeles and the Cities of Los Angeles, Malibu, Santa Monica, and Pasadena share common minimum wage hikes effective July 1. In each of those jurisdictions, employers of 26 or more employees will be subject to an increase in the minimum wage from $14.25 to $15 per hour and employers of 25 or fewer employees will be subject to an increase from $13.25 to $14.25. The new Los Angeles County minimum wage will govern employment in all unincorporated areas of the county.

Of all the minimum wage figures that become effective on July 1, the highest wage rate — $16.84 per hour – becomes the law in Emeryville in Northern California.

The city of Novato in the San Francisco Bay area stands out as the only California jurisdiction having three tiers of minimum wage rates that are increasing as of July 1. In Novato, employers of 25 and fewer employees will be subject to an increase in the minimum wage from $12 to $13 per hour. Employers of 26 to 99 employees will be subject to an increase from $13 to $14 per hour. Employers with 100 or more employees will be subject to an increase from $13 to $15 per hour.

Stepping up local minimum wage rates on July 1 will not have consequence on the minimum monthly salary that must be paid to an employee to maintain exempt status under California law. The minimum salary for that purpose is based on the California state minimum wage, not the minimum wage set by any city or county.

The state-wide minimum wage is now $12 per hour for employees of employers with 25 or fewer employees and $13 per hour for employees of employers with 26 or more employees. The California minimum wage will next increase on January 1, 2021.

Employers should promptly review the hourly wage rates they are paying employees working in any of the local jurisdictions mentioned above and make any adjustments necessary to maintain compliance with local law. Where adjustments in hourly rates are made, corresponding changes to pay stubs must also be made.

So many aspects of daily life and doing business have changed during this global pandemic. If you have employees in California, it’s time for your injury and illness prevention plan (IIPP) to change, too.

By way of background, California Labor Code § 6401.7 requires that every employer have a written program that, among other things, identifies workplace hazards and trains employees on how to address them. It also requires that employers update their plans when new hazards emerge. Well, if you’ve seen the news in the last few months, you may have noticed that a new hazard has emerged. (Cue Jaws theme.)

In response to that new hazard, Cal/OSHA has issued Interim General Guidelines on Protecting Workers from COVID-19. The guidelines first discuss which employers must comply with Cal/OSHA’s more stringent Aerosol Transmissible Diseases Standard (California Code of Regulations, title 8, section 5199). Those apply to hospitals, correctional facilities, homeless shelters, certain labs, and other workplaces that are deemed particularly vulnerable. But every employer, regardless of whether they’re subject to those requirements, should have a section of their IIPP that addresses COVID-19 and includes the following items:

  • Actively encourage sick employees to stay home.
  • Immediately send employees sick employees home or to medical care.
  • Ensure that employees who are out ill with fever or acute respiratory symptoms do not return to work until they’ve:
    • Had no fever (without the use of fever-reducing drugs) and no acute respiratory illness symptoms for at least three days; and
    • It’s been at least 10 days since the symptoms first appeared.
  • Provide employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19 if required to by the Families First Coronavirus Response Act.
  • Ensure employees that return to work following an illness promptly report any recurrence of symptoms.
  • Encourage employees to telework from home when possible.
  • Practice physical distancing by by using video or telephonic meetings and maintaining a distance of at least six feet between persons at the workplace when possible.
  • Provide employees with cloth face covers or encourage employees to use their own face covers for use whenever employees may be in workplaces with other persons.
  • Avoid shared workspaces (desks, offices, and cubicles) and work items (phones, computers, other work tools, and equipment) when possible. If they must be shared, clean and disinfect shared workspaces and work items before and after use.
  • Establish procedures to routinely clean and disinfect commonly touched objects and surfaces such as elevator buttons, handrails, copy machines, faucets, and doorknobs.
  • If an employee is confirmed to have COVID-19 infection:
    • Inform employees of their possible exposure to COVID-19 in the workplace but maintain confidentiality as required by the Americans with Disabilities Act.
    • Temporarily close the general area where the infected employee worked until cleaning is completed.
    • Conduct deep cleaning of the entire general area where the infected employee worked and may have been, including breakrooms, restrooms and travel areas, with a cleaning agent approved for use by the EPA against coronavirus. It should ideally be performed by a professional cleaning service. The person doing the cleaning should be equipped with proper PPE.
  • Advise employees to avoid non-essential travel if possible.

To protect employees in industries such as retail sales or service industries that have frequent contact with the public, employers should take the following additional steps:

  • Frequently clean and disinfect surfaces touched by the public such as credit card machines, touch screens, shopping carts and doors.
  • Protect cashiers and other workers who have frequent interaction with the public with engineering controls such as Plexiglas screens or other physical barriers, or spatial barriers of at least six feet, if feasible.
  • If exposures to the general public cannot be eliminated with engineering controls, require or encourage customers to wear face coverings, which are mandatory in some jurisdictions.
  • Schedule work to allow frequent hand washing by employees handling items (cash, credit cards, merchandise, etc.) touched by members of the public.  Executive Order N-51-20, for example, requires that employees working in food facilities be allowed to wash their hands every 30 minutes and additionally, as needed.
  • Enforce physical distancing by limiting the number of customers in retail space.
  • Ask customers to take precautions such as only touching items they intend to purchase, and provide hand sanitizer stations.
  • Provide workers handling items touched by the public with PPE (i.e., disposable gloves).

Of course, having a IIPP accomplishes little if employees are not aware of it. So employers are also expected to train workers in a language they readily understand on the following topics:

  • A general description of COVID-19, symptoms, when to seek medical attention, how to prevent its spread, and the employer’s procedures for preventing its spread at the workplace.
  • How an infected person can spread COVID-19 to others even if they are not sick.
  • How to prevent the spread of COVID-19 by using cloth face covers.
  • Cough and sneeze etiquette.
  • Washing hands with soap and water for at least 20 seconds, after interacting with other persons and after contacting shared surfaces or objects.
  • Avoiding touching eyes, nose, and mouth with unwashed hands.
  • Avoiding sharing personal items with co-workers (i.e., dishes, cups, utensils, towels.
  • Providing tissues, no-touch disposal trash cans and hand sanitizer for use by employees.
  • Safely using cleaners and disinfectants, which includes:
    • The hazards of the cleaners and disinfectants used at the worksite.
    • Wearing PPE (such as gloves).
    • Ensuring cleaners and disinfectants are used in a manner that does not endanger employees.

That’s a lot, I know. Fortunately these are just guidelines. They do not impose new legal requirements.

Want more information about when to reopen, how to bring back workers, managing leaves and accommodations, and protecting your workers and customers? Jenny H. Fuller, Brian McGinnis, and I conducted a free webinar on this topic on May 28, 2020 at 10 a.m. Pacific. You can view the slides or even access a recording here.

In response to the COVID-19 emergency and stay-at-home orders, Mayor Eric Garcetti signed two new ordinances into law.  Both ordinances will become effective on June 14, 2020.

The Right to Recall Ordinance dictates rehire protocol to select employers, providing guidelines based on seniority for select employers that laid off workers during the COVID-19 crisis.

The Worker Retention Ordinance requires that employers in the same select industries provide seniority preferences to workers in the event of a change in business ownership or control within two years of the City of Los Angeles’s COVID-19 emergency declarations.

For more information, be sure to check out our alert.

Governor Newsom announced today that California has moved on to early Stage 2, but only for cities and counties that obtain state approval.

Under Stage 2, certain businesses, establishments or activities may qualify to reopen including:

  • Dine-in restaurants
  • Limited services
  • Outdoor museums
  • Shopping centers & all in-store retail
  • All office-based workplaces
  • All manufacturing industries supporting retail
  • All logistics industries supporting retail
  • Stage 1 Sectors (essential businesses)

The state published specific guidance for restaurants, as well as a checklist to use for re-opening planning, and to post for the public.   For any restaurant considering re-opening, these lists are a great place to start.

There is also guidance and a checklist for shopping centers.  Another very helpful resource.

The following sectors remain closed throughout the state:

  • Personal services such as hair and nail salons, tattoo parlors, gyms and fitness studios
  • Hospitality services, such as bars, wineries, tasting rooms and lounges
  • Entertainment venues, such as movie theaters, gaming facilities, and pro sports Indoor museums, kids museums and gallery spaces, zoos, and libraries
  • Community centers, public pools, playgrounds, and picnic areas
  • Religious services and cultural ceremonies
  • Nightclubs
  • Concert venues
  • Live audience sports
  • Festivals
  • Theme parks
  • Hotels/lodging for leisure and tourism

Keep in mind that each city and county is governed by particular local orders.  Chances are that many businesses (especially those in more populated cities and counties, including Los Angeles), will remain closed in many respects through summer.

Governor Gavin Newsom issued an executive order on May 6, 2020 that creates a rebuttable presumption that employees working outside the home who contract COVID-19 became infected at work. They would therefore be entitled to workers’ compensation benefits.

Here’s how the presumption works. An employee will be presumed to have contracted the virus at work if:

  1. The employee tested positive for or was diagnosed with COVID-19 within 14 days after the employee worked at his or her place of employment at the employer’s direction;
  2. The date the employee worked as described in the preceding paragraph was on or after March 19, 2020;
  3. The workplace was not in the employee’s home; and
  4. If the employee was diagnosed with COVID-19, but was not tested, the diagnosis was given by a physician licensed in California and is confirmed by further testing within 30 days of the diagnosis.

Of course, there’s no factual basis for the presumption. Someone could have been exposed anywhere and in the vast majority of cases, we may never know the source of exposure. But the governor has decided that California employers, so many of whom are already struggling to survive, should bear the cost of care through higher workers’ compensation insurance premiums.

Takeaway: If an employee tells you they believe they have COVID-19, and they meet the criteria above, you have one workday to get them the claim form (DWC 1). Also, advise your workers’ comp carrier immediately, since the time to try to show alternative causes is extremely limited.

I have been speaking with many clients about the first steps for return-to-work planning.  The Covid-19 shut-downs were so quick that there wasn’t  sufficient time to plan.  Employers want to have a more thoughtful approach to bringing the workforce back.  Here are a few initial considerations.

First, consider what message you provided to your workforce when you closed.  Did you tell everyone the layoff/furlough was temporary and they would be asked to return when you were allowed to re-open?  If so, then keep your word.  Or did you lay everyone off with no promise to return?

Second, depending on your pre-closure message, it may make sense to simply reinstate workers with their prior offer letter and personnel file intact.  Consider obtaining confirmation that the information is still accurate, and disclosing that the prior personnel file remains effective.  Keep in mind, you will need to fill out Section 3 to each form I-9.

Third, you can also opt to rehire in a more formal way with an entire new hire packet.  Use this opportunity to have employees sign an updated handbook (to include Covid-19, work-from-home, and safety related policies), and perhaps an updated confidentiality agreement and/or arbitration agreement.  Also reiterate that all employment is at-will and subject to change as the economic situation develops.

Finally, keep in mind that when rehiring, if you cherry pick you may open your company up to discrimination claims.  A conservative approach is to rehire the most senior employees first (i.e., the opposite of the last-in-first-out approach for layoffs).  Any deviation due to skill set or performance should  have documented back-up and be thoroughly vetted.  Also note that some cities (and union contracts) may  requirements about rehiring, as Los Angeles is currently considering.

While employers had to shut down without much notice, the return-to-work phased re-opening process can be more thoughtful and organized.  In these uncertain times, here’s to controlling the things you can (or at least clinging to the illusion of control)!