Happy New Year!  2021 has been another challenging year for California employers.  COVID-related laws still predominate many issues facing California employers, from mandatory vaccinations, testing issues, and the various Federal, state and local requirements.  California employers face these COVID-19 issues in addition to the normal heavy regulatory and ever changing framework facing them.

This Friday’s Five focuses on the enormous amount of work put forth by our team at Zaller Law Group (ZLG) during 2021 in helping California employers deal and stay informed with these new legal developments.

Here are five highlights on how Zaller Law Group continued to support California employers in 2021:

1. 72 Blog Posts

The California Employment Law Report was a primary resource ZLG uses to provide updates about California employment law during the year.  Our blog will continue be one of the first places new legal issues that employers need to know about are posted.  If you are not already a subscriber, you can subscribe to the blog here:  https://www.californiaemploymentlawreport.com/subscribe/

2. Over 15 webinars conducted

We hosted a number of webinars through our Firm, as well as in partnership with Cal/OSHA, the California Restaurant Association, and the San Bernardino Economic Development department, among other groups.  These webinars were a great source of information for California employers to stay informed about California’s quickly developing issues.

We also started the Executive Leadership Insights webinar, during which we had distinguished guests from companies such as Urban Plates (Mike Connelly – VP of Operations); Specialty Restaurants Corporation (John Tallichet – President and CEO), Flynn Restaurant Group (Maya Ohana – Senior Counsel), Hello Bello (Erica Buxton – President), and Nolan Bushnell (founder of Atari and Chuck E. Cheese).  The best way to be informed about any upcoming webinars is to subscribe to the blog here (subscribers to the blog are notified of webinars available to the public).

3. 51 YouTube Videos

There were over 47,000 views of the Firm’s video content.  On YouTube, the watch time consisted of over 1,900 hours, over 1,650 subscribers to the channel: Employment Law Report – YouTube.

4. 16 Podcast Episodes

Our podcast, Zaller Talk, is available on most podcast platforms, such as Spotify and iTunes.

My favorite episode in 2021 was my discussion with Madelyn Alfano, founder of Maria’s Italian Kitchen.

5. 9 employees of Zaller Law Group.

The work described above is a testament to the dedication of the attorneys and staff at Zaller Law Group on how hard the team works to reach these accomplishments in 2021 – especially considering that this work is in addition to the normal litigation obligations the team provides in defending employers in court.

Wishing everyone the best this year, and we look forward to assisting California employers in successfully navigating California employment laws in 2022!

As special opportunity for readers of my blog – we are giving away 9 free copies of Gary Vaynerchuk’s new book, Twelve and a Half.  This new book is an essential read for CEO’s and human resource professionals.  In the book, Gary explains why “soft skills,” often referred to as emotional intelligence, are critical for leaders today.  These skills, such as empathy, self-awareness, and patience, are not taught in business schools, cannot be tracked on a spreadsheet, and are often only given lip service in organizations – yet they are critical for individual success, as well as creating an organizational culture that values each employee, and balances kind candor with accountability by constructive feedback for improvement.  Twelve and a Half is a great book for leaders to start off 2022 on the right foot.  For your free copy (and we will also cover shipping), you must be a subscriber to the blog, and be one of the first 9 people that register here.

Good luck!

Merry Christmas!  With the end of the year, it is a perfect time for companies to conduct a California employment law practices audit to ensure that policies are compliant, managers are properly trained, and the company is maintaining the required records for the necessary length of time.  Here are five topics to review in conducting an audit and a few suggested questions for each topic:

1. Hiring Practices

  • Are applications seeking appropriate information?
    • Ensure compliance with state and local ban the box regulations.
  • Are new hires provided with required policies and notices?
  • Are new hires provided and acknowledge recommended policies?
    • For example: meal period waivers for shifts less than six hours
  • Are hiring managers trained about the correct questions to ask during the interview?
  • Does the company provide new hires (and existing employees) with arbitration agreements that comply with California law?

 2. Records

  • Are employee files maintained confidentially and for at least four years?
  • Are employee time records maintained for at least four years?
  • Are employee schedules maintained for at least four years?
  • Do the managers have set forms for the following:
    • Employee discipline and write-ups
    • Documenting employee tardiness
  • How is the employee documentation provided to Human Resources or the appropriate manager?
  • Who is involved in reviewing disability accommodation requests?
  • How are employee absences documented?

3. Wage and Hour Issues

  • Does the company have its workweeks and paydays established?
  • Are paydays within the applicable time limits after the pay period as required under the law?
  • Are employees provided with compliant itemized wage statements?
  • Are employees provided a writing setting out their accrued paid sick leave each pay period?
  • Are employees properly classified as exempt or nonexempt?
    • For exempt employees, review their duties and salary to ensure they meet the legal requirements to be an exempt employee.
  • Any workers classified as independent contractors, and if so, could they be considered employees under AB 5?
  • Are nonexempt employees properly compensated for all overtime worked?
  • Is off-the-clock work prohibited?
    • Policy in place?
    • Are managers trained about how to recognize off-the-clock work and what disciplinary actions to take if find employees working off-the-clock?
  • Does the company’s time keeping system round employee’s time?
    • If so, is the rounding policy compliant with the law? (note that meal breaks cannot be rounded pursuant to Donohue v. AMN Services)
  • Are meal and rest period policies set out in handbook and employees routinely reminded of policies?
    • Does the company pay “premium pay” for missed meal and rest breaks? If so, how is this documented on the employee pay stub?
    • Do employees record meal breaks?
    • Are managers trained on how to administer breaks and what actions to take if employees miss meal or rest breaks?
    • Are employees provided attestations to document the reason if the employee missed, took a short, or a late meal break? (See Donohue v. AMN Services)
  • Is vacation properly documented, tracked, and is unused vacation paid out with the employee’s final paycheck?
  • Are all deductions from the employee’s pay check legally permitted?
  • Are employees reimbursed for all business expenses, such as uniforms, work equipment, mileage for work, and for expenses incurred for working from home during COVID-19 (such as internet, cell phones, etc.)?

 4.End of Employment Issues

  • Are employees leaving the company provided their final wages, including payment for all accrued and unused vacation time?
  • Are final paychecks provided to employees within the required deadlines?
  • Does the employer deduct any items from an employee’s final paycheck?
    • If so, are the deductions legally permitted? (use caution, very few deductions are permitted under CA law)

5. Anti-harassment, discrimination and retaliation

  • Are supervisors provided with sexual harassment training every two years? (If employer has 50 or more employees, supervisors are legally required to have a two-hour harassment prevention training that complies with California law).
  • Are there steps in place to provide nonsupervisory employees with 1 hour sexual harassment prevention training and once every 2 years thereafter? (required for employers with 5 or more employees)
  • Are supervisors and managers discussing the company’s open-door policy to employees at routine meetings with employees? Is this being documented?

Cal/OSHA readopted the COVID-19 Prevention Emergency Temporary Standards (ETS) on December 16, 2021.  While a large portion of the existing ETS remains in place, there were a few changes made in this newly adopted ETS.  The new ETS approved on December 16 will take effect on January 14, 2022.  This Friday’s Five provides a summary of some of key revisions employers must be aware of:

1. Testing requirements are modified.

The revised ETS provide that an acceptable COVID-19 test cannot be self-administered and self-read.  The employer or an authorized telehealth proctor must observe a self-administered test for it to qualify as a COVID-19 test under the ETS.

The revised ETS obligates employers to provide testing to employees if they have had a close COVID-19 contact, even if they are fully vaccinated.  This is a change from the prior version of the ETS that did not require employer to provide testing to employees who were fully vaccinated.

The revised ETS also requires employers to provide testing at no costs to all employees during an outbreak, even those who were fully vaccinated.  The prior version of the ETS did not require employers to provide testing to fully vaccinated employees who did not have symptoms during an outbreak.

2. Face covering definition has been updated (in addition to California’s updated mask mandate in place from December 15, 2021 through January 15, 2022).

The definition for face covering was updated to include a requirement that the face covering is made of “fabrics that do not let light pass through when held up to a light source.”  These include surgical mask, medical procedure masks, a respirator worn voluntarily, or a tightly woven fabric or non-woven material of at least tow layers.  Gaiters are permitted if they have “two layers of fabric or be folded to make two layers.”

Separate from the ETS, California’s Department of Public Health implemented a new mandate on face coverings, requiring all individuals, vaccinated and unvaccinated, to wear a mask in all indoor public settings in California.  The guidance applies to workplaces regardless of whether they serve the public or are open to the public.  This requirement is in place from December 15, 2021 through January 15, 2022.  More information about the face covering requirements, visit the CDPH website here.

3. Worksite definition is clarified.

The ETS clarified in the definition of “worksite” that it does not include “location where the worker worked by themselves without exposure to other employees, or to a worker’s personal residence or alternative work location chosen by the worker when working remotely.”  This revised definition potentially narrows the number of employees that notice must be provided when there is COVID-19 at the workplace.

4. Requires face coverings during screenings, even for vaccinated people.

Under the revised ETS, employers must ensure that workplace screeners and employees being screened for COVID-19 must wear face coverings.  The prior version of the ETS permitted the screeners and employees not to wear face coverings if they were fully vaccinated.

5. Exclusion from the workplace requirements modified.

In terms of employer’s obligations to exclude employees from the workplace, the revised ETS changed these requirements:

Fully Vaccinated

The revised ETS requires fully vaccinated employees who have a close contact to be excluded unless they (1) do not develop symptoms, (2) wear a face covering and maintain six feet of distance from others for 14 days following the close contact.  The requirement that they must wear a face covering is a new requirement that was not included in the prior ETS.

Likewise, employees who have recovered from a COVID-19 infection in the prior 90 days and do not have symptoms, can return to work after a close contact as long as they wear a face covering and maintain six feet of distance from others for 14 days following the close contact.

Not Fully Vaccinated

Employees who have not been vaccinated, may return to work after a close contact if they do not develop symptoms, and 14 days have passed since the last known close contact.  However, if ten days have passed since the last known contact and the person wears a face covering and maintains six feet of distance from other for 14 days following the last close contact they may return to work.  They may also return to work if seven days have passed since the last known close contact and they test negative for COVID-19 with a specimen taken at least five days after the last known close contact, and the person wears a face covering and maintains six feet of distance from others at the workplace for 14 days following the last known close contact.

Employers are reminded that the other portions of the prior ETS will still be in place.  For example, employers must still develop a written COVID-19 Prevention Program, provide training to employees, provide certain COVID-19 disclosures to employees, and pay exclusion pay to employees excluded from work due to a workplace exposure.

On December 15, 2021, the U.S. Supreme Court granted certiorari in Viking River Cruises, Inc. v. Moriana.  At issue in this case is whether a California employer may enter into a voluntary agreement with an employee whereby the employee agrees to only bring his or her individual claims in an arbitration proceeding and not bring any class or representative claim under California’s Private Attorneys General Act (PAGA).  The U.S. Supreme Court will likely issue a decision in the summer of 2022.  Here is an overview of the key issues in Viking River Cruises, Inc. v. Moriana, California employers need to understand:

California’s Private Attorneys General Act (PAGA)

PAGA was designed by the California Legislature offer financial incentives to private individuals to enforce state labor laws by recovering certain civil penalties.  Aggrieved employees can seek recovery of civil penalties for Labor Code violations they suffered, in addition to penalties for all Labor Code violations by the employer in a representative action, as long as the employee suffered by at least one violation.  PAGA permits the aggrieved employees to collect civil penalties for Labor Code violations previously recoverable only by the Labor Commissioner.  If the Labor Code does not provide for a penalty, PAGA sets them at $100 per employee per pay period for the first violation, and $200 per pay period per employee for a subsequent violation. 75% of the collected penalties must be distributed to the Labor and Workforce Development Agency, and the remaining 25% is to be distributed among the employees affected by the violations, and a prevailing plaintiff is entitled to their fees and costs.  PAGA claims are representative actions, but they are distinct from class actions.

Class Actions

Class actions are brought against a defendant, but the claims are being asserted on behalf of parties who are not actually in the courtroom or named as individual plaintiffs.  In the employment context, the plaintiffs are usually represented by at least one named plaintiff who is bringing claims that he or she has an individual on behalf of any other worker to is similar to the named plaintiff. The named plaintiff must prove to the court that there is a clear class definition that can be arrived at, and the individuals who meet that definition can be ascertained in some manner.  This proof is required to be presented when plaintiff brings their motion for class certification.  Class actions were developed for several reasons. One is to address the problem of  “negative value claims” as described by the court in Baker v. Microsoft (for claims that are legitimate, but cost too much to litigate individually).

Arbitration Proceedings

Simply stated, an arbitration is a legal proceeding in which the parties agree to resolve their differences before a private arbitrator instead of in civil court. There are many different arbitration companies to choose from, but the American Arbitration Association and JAMS are two of the larger ones that are routinely appointed in arbitration agreements.

California and U.S. Supreme Court Arbitration Cases

In 2011, the Supreme Court held in AT&T Mobility v. Concepcion arbitration agreements in which the plaintiffs agreed to resolve only their individual claims and could not bring any class claims in the consumer context, such as with cell phone providers, cable providers or services provided by internet companies, are enforceable.

In 2014, the California Supreme Court ruled in Iskanian v. CLS Transportation Los Angeles, LLC that pre-dispute agreements in which employees agree to arbitrate their individual claims and waive their ability to bring a representative PAGA claim on behalf of other employees is unenforceable and contrary to California’s public policy.  The Iskanian ruling barred employers from enforcing arbitration agreements that prohibited employees from bringing PAGA representative claims.

In 2018, the U.S. Supreme Court, in Epic Systems Corp. v. Lewis, held that employment arbitration agreements that bar class actions are enforceable.  Epic confirmed Concepcion’s holding that agreements whereby employees forgo class or collective actions by agreeing to individual arbitrations are enforceable under federal law.

In Viking River Cruises, Inc. v. Moriana, plaintiff worked for Viking as a sales representative in Los Angeles.  Plaintiff sued Viking alleging various Labor Code violations and sought to recover PAGA penalties on a representative basis.  However, when she started working for Viking, she agreed to resolve all employment issues with Viking in arbitration, and the parties would use individual procedures rather than class or representative action procedures such as PAGA.  Viking sought to compel Moriana’s individual claims to arbitration, but the trial court and the California Court of Appeal denied Viking’s request, citing the California Supreme Court’s holding in Iskanian. The California Court of Appeal noted that it “must follow the California Supreme Court, unless the United States Supreme Court has decided the same question differently.” Therefore, Viking petitioned the United States Supreme Court to review the case, arguing that Iskanian is preempted by federal law and the U.S. Supreme Court holdings in Concepcion and Epic. The U.S. Supreme Court agreed to review the case on December 15, 2021.  A decision in the case will likely be in the summer of 2022.

California employers should review their arbitration agreements with their attorney and potentially update given this new development.

California employers should review their arbitration agreements with counsel to evaluate whether the agreements should specifically prohibit representative PAGA actions given the U.S. Supreme Court’s review of Viking.

In addition, the U.S. Supreme Court’s review of Viking will also likely impact current PAGA cases, even before the final decision is issued in the summer of 2022, as defendants may have additional arguments to defeat currently pending PAGA cases depending on how the U.S. Supreme Court will rule.

[*Update: Cal/OSHA Emergency Temporary Standards (ETS) has been extended until at least May 6, 2022, and Cal/OSHA has the ability to extend the ETS until the end of 2022.]

California employers must remember to comply with the nuances of the Cal/OSHA Emergency Temporary Standards (ETS), which became effective in November 2020, and are currently set to expire on January 14, 2022* (see update above).  While California’s COVID-19 Supplemental Paid Sick Leave expired in September 2021, Cal/OSHA ETS requirement to pay employees for “exclusion pay” still applies to employers.  Here are five reminders about the requirements for California employers to pay exclusion pay under the ETS:

1. Employers must comply with the Cal/OSHA ETS until at least May 6, 2022 (see update above).

Cal/OSHA is meeting on December 16, 2021 to discuss any potential changes to the ETS and whether to extend the ETS until April 14, 2022*.  Regardless of any action taken by Cal/OSHA, employers must still comply with the current ETS, including the requirement to provide exclusion pay to employees until at least January 14, 2022*.  Employers need to monitor the December 16th meeting to ensure compliance with any changes that are adopted (we will monitor and post updates, and will provide detailed information to subscribers to our blog).

2. Exclusion pay is required if the employee is excluded from work because of a workplace exposure to COVID-19.

An employee who is excluded from work because of a workplace COVID-19 exposure must receive exclusion pay if: 1) the employee was not assigned to telework during that time; and 2) the employee did not receive Disability Payments or Workers’ Compensation Temporary Disability Payments during the exclusion period.  Cal/OSHA explains that employers do not need to pay exclusion pay if it is a non-work exposure or due to another reason, such as a business closure, caring for a family member, disability, or vacation.  However, the employer has the burden of proof, and must show it is more likely than not that the employee’s COVID-19 exposure was outside of the workplace.

3. Employers cannot require employees to use paid sick leave provided to employees under California Labor Code section 246.

Employers are prohibited from requiring employees to use their California paid sick leave required under the Healthy Workplace Healthy Family Act of 2014 as set forth in Labor Code section 246.  Employers may require employees to use any other paid leave provided to employees that is separate and in addition to the California paid sick leave.  [Update: However, employers cannot require employees to first exhaust their 2022 Supplemental Paid Sick Leave before paying exclusion leave required under the Cal/OSHA Emergency Temporary Standards (ETS).]

4. There is no cap on the total amount of exclusion pay that may be required.

The ETS does not cap the amount of exclusion pay for employees.  However, the ETS does provide that if an employee “is out of work for more than a standard exclusion period based on a single exposure or positive test, but still does not meet the regulation’s requirements to return to work, the employee may be entitled to other benefits, such as Temporary Disability, Disability….”

5. The employee is entitled to their regular rate of pay for the pay period in which the employee is excluded.

The amount of pay an employee is entitled to for exclusion pay is the regular rate of pay for the pay period the employee is excluded.  Cal/OSHA explains, “These employees are entitled to exclusion pay, depending on the length of the required exclusion period and how many days they were scheduled to work during that exclusion period.”  However, Cal/OSHA does not provide any explanation of how to calculate the amount owed to employees who work a variable schedule each pay period.  In addition, the employee must be paid no later than the regular payday for the pay period they had the work-related exclusion.

As 2021 is quickly coming to an end, this article focuses on five steps employers can take in preparation for 2022:

1. Update employee handbooks to comply with AB 1033 which expanded the definition of family members covered under the California Family Rights Act.

AB 1033 passed in 2021 and takes effect on January 1, 2022, adds parents-in-law to the definition of “parent” for purposes of qualifying leave under the California Family Rights Act (CFRA).  As a reminder, effective January 1, 2021,  SB 1383 took effect that requires employers with 5 or more employees to comply with the CFRA.  Employers with as few as five employees must provide up to 12 weeks of unpaid job protected leave during any 12-month period for certain covered reasons.  In addition, the definition of family members covered under the CFRA was expanded under SB 1383 so that it no longer just includes a spouse, a parent or a child, but employees can take leave to care for grandparents, grandchildren, siblings, or domestic partners with a serious health condition. Employers should review their CFRA policies to ensure compliance with these recent changes.

2.  Review new hire packets and documents to ensure employees are receiving all required documents, and the most current versions of the required documents.

California employers are required to provide certain information and forms to new hires.  For example, California employers are required to provide non-exempt employees with certain information upon hire as required by the Wage Theft Protection Act.  The law became effective in 2012 and is codified at Labor Code section 2810.5.  Many employers use the Labor Commissioner’s template (available here) to meet their legal requirement, and will pre-populate the items in the form that do not change from employee to employee, lessening the information required to be completed on the form for each employee.

Our prior article here covers general considerations for employers to develop a checklist specific for their company.

3. Exempt employees – review and update salary to ensure minimum threshold is paid.

Employers need to review the base salary for all exempt employees to ensure the employees meet the salary required to be exempt.  To be exempt from the requirement of having to pay overtime to the employee, the employee must perform specified duties in a particular manner and be paid “a monthly salary equivalent to no less than two times the state minimum wage for full-time employment.” (Lab. Code, § 515, subd. (a).)  For more information about the salary basis test for exempt employees, see our previous article here.

With the increase in the state minimum wage on January 1, 2022, the equivalent of two times the minimum wage of $14 per hour for small employers (25 employees or less) equals $58,240 per year ($1,120 per week), and two times the minimum of $15 per hour for large employers (26 employees or more) equals $62,400 per year ($1,200 per week) to qualify for the white collar exemptions.

It is important to note that the salary basis test is set according to the California state minimum wage, not the applicable minimum wage that may apply in the various local city and counties in California.

4. Update severance agreements to ensure they comply with recent developments.

AB 331 was approved by the Governor on October 7, 2021, and its provisions applies to employment agreements (specifically severance agreements, settlements agreements, or a release of claims) entered into on or after January 1, 2022.  AB 331, known as the “Silenced No More Act,” amends Code of Civil Procedure Section 1001 and prohibits settlement agreements filed in “a civil action” or a complaint in “an administrative action” from preventing the disclosure of factual information related to the claim.  This applies to claims for sexual harassment, as well as workplace harassment, discrimination, or retaliation based on any other protected characteristic under California law.

AB 331 also prohibits employers from requiring employees to sign an agreement (a nondisparagement agreement or any other document) that would restrict the employee’s ability to disclose information about unlawful acts in the workplace.

The law also requires the following disclosure in an agreement that contains a non-disparagement provision or any other restriction on the employee’s ability to disclose information related to workplace conditions: “Nothing in this agreement prevents you from discussing or disclosing information about unlawful acts in the workplace, such as harassment or discrimination or any other conduct that you have reason to believe is unlawful.”

In terms of separation/severance agreements, the new law requires employers to notify the employee that they have at least five days to consider the agreement and that they have a right to consult an attorney.  The employee may sign the agreement prior to the expiration of this five-day period.

More information about AB 331 can be read in our prior article here.

5. Begin preparing in order to meet the March 31, 2022 deadline for California’s payroll reporting requirement.

California employers will need to comply with the March 31, 2022 deadline to report certain payroll data to the Department of Fair Employment and Housing (DFEH).  Yes, it is only the beginning of December, but for large employers, they should begin the process of gathering this information at the beginning of 2022 in order to meet the March deadline.  As a reminder, SB 973, passed in September 2020 that created a new obligation for California employers to annually submit pay data report to the DFEH.  The DFEH has recently published a frequently asked questions page clarifying some questions about SB 973.  Our prior article on which employers must comply and other requirements of the law can be read here.

AB 331 known as the “Silenced No More Act,” was approved by the Governor on October 7, 2021, and its provisions applies to employment agreements, such as severance agreements, settlements agreements, or a release of claims.  Here are five items employers should understand about AB 331:

1. When does AB 331 take effect?

AB 331 applies to agreements entered on or after January 1, 2022.

2. AB 331 broadens the categories that employers cannot restrict employees from disclosing.

AB 331 amends Code of Civil Procedure Section 1001 and prohibits settlement agreements filed in a civil action or a complaint in an administrative action from preventing the disclosure of factual information related to the claim.  This applies to claims for sexual harassment, as well as workplace harassment, discrimination, or retaliation based on any other protected characteristic under California law.  AB 331 builds on the laws passed in 2018 from the #metoo movement, which prohibited employers from preventing employees or former employees from discussing claims and facts related to sexual harassment in the workplace.  AB 331 broadens this prohibition to apply to any type of workplace harassment or discrimination.

AB 331 also prohibits employers from requiring employees to sign an agreement (a nondisparagement agreement or any other document) that would restrict the employee’s ability to disclose information about unlawful acts in the workplace.

3. AB 331 requires certain disclosures be made in agreements with employees.

The law also requires the following disclosure in an agreement that contains a non-disparagement provision or any other restriction on the employee’s ability to disclose information related to workplace conditions: “Nothing in this agreement prevents you from discussing or disclosing information about unlawful acts in the workplace, such as harassment or discrimination or any other conduct that you have reason to believe is unlawful.”

Employers providing an employee or former employee a severance agreement must also notify the employee that they have a right to consult an attorney regarding the severance agreement.

4. Employers must provide employees with at least five days consider severance agreements.

For separation and severance agreements, the new law requires employers to notify the employee that they have at least five days to consider the agreement.  The employee may sign the agreement prior to the expiration of this five-day period.

5. Review employee agreements to ensure they are compliant.

Employer should review and potentially update employment documents, which may include the following types of employment-related documents:

  • severance agreements
  • standard release of claims, and settlement agreements
  • non-solicitation agreements
  • confidentiality agreements
  • nondisclosure agreements

As we enter the holiday season, it is a good time to review employer’s obligations to accommodate requests for time off for holidays and best pay practices during the holiday season.  This Friday’s Five covers five reminders for employers about holiday leaves and pay:

1. California employers are not required to provide employees time off for holidays.

There is no requirement that California employers provide time off (except for religious accommodations – see below) for holidays. California’s DLSE’s website states the following:

Hours worked on holidays, Saturdays, and Sundays are treated like hours worked on any other day of the week. California law does not require that an employer provide its employees with paid holidays, that it closes its business on any holiday, or that employees be given the day off for any particular holiday.

2. California employers are not required to pay for time off for holidays, nor are they required to pay additional wages if employees work on holidays.

Likewise, there is no requirement that employers pay employees extra pay or “holiday pay” for work performed on holidays. Employers can voluntarily agree to pay employees extra pay for work that is required during holidays, but these terms would be governed by policy set forth by the employer. Therefore, employers are urged to make sure their holiday pay policies are clearly set forth.

California’s legislature has proposed bills that would require certain employers to pay employees double time for work done on Thanksgiving, but none of these bills have become law.  For example, the “Double Pay on the Holiday Act of 2016” proposed to require an employer to pay at least 2 times the regular rate of pay to employees at retail and grocery store establishments on Thanksgiving. None of these attempts by the legislature have been successful (yet) in requiring California employers to pay any extra “holiday pay.”

3. Employers must provide reasonable accommodations for employees who cannot work on certain holidays due to religious observances.

Employers need to be aware of any religious observances of their employees since employers need to provide reasonable accommodations for employees due to religious reasons. The analysis of reasonable accommodation is required is a case-by-case basis analysis based on the company’s type of business and the accommodation requested by the employee. If the employer’s operations require employees to work during normally recognized holidays, such as a restaurant, then this should be communicated to employees in the handbook or other policies and set the expectation that an essential function of the job requires work during normal holidays.

4. If an employer pays for time off during holidays, the employer does not have to allow employees to accrue holiday paid time off.

If an employer pays for time off during certain holidays, if an employee leaves employment before the holiday arrives, the employer is not required to pay the employee for the day off.  But the employer’s policy regarding holiday pay must clearly set forth that this benefit does not accrue to employees and that they must be employed during the specific holidays to receive the holiday pay.  Often employers will also require employees to work the days leading up to and following the holiday in order be eligible for the holiday pay.

5. If a pay day falls on certain holidays, and the employer is closed, the employer may process payroll on the next business day.

If an employer is closed on holidays listed in the California Government Code, then the employer may pay wages on the next business day.  The DLSE’s website sets forth this requirement, and other considerations, regarding the timing obligations for payroll.  The holidays listed in the Government Code section 6700 are as follows:

  • Every Sunday
  • January 1 — New Year’s Day
  • Third Monday in January — Martin Luther King Jr. Day
  • February 12 — Lincoln’s Birthday
  • Third Monday in February — Washington’s Birthday
  • March 31 – Cesar Chaves Day
  • Last Monday in May — Memorial Day
  • July 4 — Independence Day
  • First Monday in September — Labor Day
  • September 9 – Admission Day
  • Fourth Friday in September – Native American Day
  • Second Monday in October — Columbus Day
  • November 11 — Veterans Day
  • December 25 — Christmas
  • Good Friday from 12 noon to 3 p.m.
  • Other days appointed by the governor for a public fast, thanksgiving or holiday

AB 654 is a new law that took effect on October 5, 2021 and modified California employer’s duty to notify workers of a potential COVID-19 exposure at the workplace.  The new law modifies and updates AB 685 which became effective on January 1, 2021 (see our post discussing AB 685 here).  The new law is a reminder for employers that while business begin to reopen and employees return to work, employers must remain diligent in regard to these ongoing COVID-19 regulations in California.  Here are five key aspects of AB 654 employers need to review:

1. Employers must notify employees (1) who had a potential exposure and (2) employees who had close contact within one business day.

Employers are required to provide written notice to all employees, and the employers of subcontracted employees, who were on the premises at the same “worksite” as the “qualifying individual” within the “infectious period” that they may have been exposed to COVID-19.

AB 654 adds a new requirement that employers are also required to provide a written notice to any employees who had “close contact” with the qualifying individuals.  “Close contact” is defined at “being within six feet of a COVID-19 case for a cumulative total of 15 minutes or greater in any 24-hour period within or overlapping with the high-risk exposure period….”

The new law defines “high-risk exposure period” as either of the following periods: “(A) For persons who develop COVID-19 symptoms, from 2 days before they first develop symptoms until 10 days after the symptoms first appeared, and until 24 hours have passed with no fever, without the use of fever-reducing medications and symptoms have improved. (B) For persons who test positive who never develop COVID-19 symptoms, from 2 days before until 10 days after the specimen for their first positive test for COVID-19 was collected.”

“Qualifying individual” is defined as any person who has any of the following (1) a laboratory-confirmed case of COVID-19 as defined by the State Department of Public Health, (2) a positive COVID-19 diagnosis from a license health care provider, (3) a COVID-19-related order to isolate provided by a public health official, or (4) died due to COVID-19, in the determination of a county public health department or per inclusion in the COVID-19 statistics of a county.

“Infectious period” in the statue refers to the definition as set by the State Department of Public Health.  Prior guidance of the State Department of Public Heath stated the infectious period “includes, at a minimum, the 48 hours before the individual developed symptoms.” (See https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/Workplace-Outbreak-Employer-Guidance.aspx)

The notice must be in a form that is usually used to communicate with employees, and can be by personal delivery, email, or text message as long as the notice is reasonably believed to be received by the employee within one business day of delivery. The notice must be in both English and in the language understood by a majority of employees.

2. Employers must provide information about COVID-19-related benefits to certain employees.

Employer must also provide information to all employees who were on the premises at the same worksite as the qualifying individual within the infectious period with information regarding COVID-19-related benefits available under federal, state, and local laws.  This information would include workers compensation benefits, options for exposed employees, including COVID-19-related leave, company sick lease, state-mandated leave, supplemental sick leave, or negotiated leave provisions.  This notice must also set forth antiretaliation and antidiscrimination protections for the employee.

3. Notice to employees must also include the cleaning and disinfection plan of the employer.

The new law clarifies that the obligation of employers notify employees of cleaning and disinfection plan only applies to employees who were on the premises at the same worksite as the qualifying individual within the infectious period, and employers of subcontractor employees.  The prior law required this notification for all employees, regardless if they were on site, or potentially exposed.  The cleaning and disinfection plan must meet the guidelines of the federal Center for Disease Control and Prevention and the COVID-19 prevention program per the Cal-OSHA COVID-19 Emergency Temporary Standards.

4. AB 654 changes the deadline to notify the local public health agency of outbreaks.

If an employer has an “outbreak” in its workforce, within 48 hours or one business day, whichever is later, the employer must notify the local public health agency in the jurisdiction of the worksite of the names, number, occupation and worksite of “qualifying individuals.” An “outbreak” for AB 654 is currently defined as: “[a]t least three probable or confirmed COVID-19 cases within a 14-day period in people who are epidemiologically-linked in the setting, are from different households, and are not identified as close contacts of each other in any other case investigation.” (see https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/OutbreakDefinitionandReportingGuidance.aspx).  Under the prior law, AB 685, employers only had 48 hours to report outbreaks to the local public health agency.

5. AB 654 clarifies the definition of “worksite.”

The new law clarifies that a “worksite” does not mean a worker’s personal residence or alternative work location chosen by the worker when working remotely.  As previously provided under the old law, AB 685, the new law in AB 654 continued to adopt the standard that at a multiworksite location, the employer only needs to notify employees who were at the same worksite as the qualified individual.

My firm is hosting a webinar on Wednesday, November 17, 2021 from 10 to 11 a.m. PT discussing this and other new laws facing California employers in 2022.  Registration for the webinar is here.