In November of 2020, Cal/OSHA came out with the COVID-19 Emergency Temporary Standards (ETS), which we covered here. The ETS provided guidance to employers in regard to developing workplace safety policies in response to the COVID-19 pandemic and required employers to draft written COVID-19 Prevention Programs. Since then, the ETS has been updated to reflect the changing COVID-19 landscape. For information regarding prior updates to the ETS, see our prior post.

As COVID-19 related deaths hit their lowest points since the start of the pandemic and with approximately 59% of Californians at least partially vaccinated, Cal/OSHA once again proposed a new set of changes to the ETS on May 7, 2021. The proposed revisions can be found here.  At first glance, it seems as though many of the proposed changes were prompted by the need for guidance in light of a an increasingly vaccinated population. Naturally, employers should make sure to monitor any updates to the ETS to ensure compliance as the vaccinated workforce continues to grow and businesses begin to fully reopen.

The Standards Board was scheduled to vote on the proposed changes on May 20, 2021. However, on the eve of the vote, Cal/OSHA’s Deputy Chief Eric Berg asked the Board to postpone its vote on the draft proposal. Berg suggested that any changes to the existing ETS would come into effect on June 15, 2021. To meet this deadline, which coincides with the date that California plans on adopting the CDC’s guidance allowing vaccinated individuals to not wear masks, the Standards Board has scheduled a June 3 meeting to vote on the new changes. The revised proposal must be drafted and posted by May 28, 2021.

Just as employers thought there could not be any additional paid sick leave requirements, the County of Los Angeles passed yet another COVID-19 paid leave requirement for employees obtaining or effected by the vaccine.  This ordinance requires employers to pay up to four hours per injection for COVID-19 vaccine paid leave under certain circumstances.  The ordinance takes effect on May 18, 2021 and applies retroactively to January 1, 2021 and expires on August 31, 2021.

1. Covered Employers

The Los Angeles COVID-19 vaccine paid leave ordinance applies to all employers who have employees working in the unincorporated areas of the County of Los Angeles.

2. Covered Employees

Any employee working in an unincorporated area of the County of Los Angeles is covered by the new ordinance.  To be eligible for this Vaccine Paid Leave, the employee is required to have exhausted all paid leave under the California 2021 COVID-19 Supplemental Paid Sick Leave set forth in Labor Code section 248.2.

3. Amount of Vaccine Paid Leave

Employees are entitled to take paid leave for “receiving each COVID-19 vaccine injection,” time traveling to and from a COVID-19 vaccine appointment, and to recover from symptoms related to receiving a COVID-19 vaccine that prevent the employee from being able to work or telework.  The COVID-19 Vaccine Paid Leave is in addition to paid sick leave required under California’s Healthy Workplaces Healthy Families Act of 2014.

Employees are entitled to up to four hours of paid leave “per injection.”  Therefore, if an employee is required to have two injections, they would be permitted to have up to eight hours of paid leave.

The employee’s regular rate of pay is calculated on the highest average two-week pay during January 1, 2021 to May 18, 2021.  Part-time employees are entitled to the prorated amount of four hours per injection based on their normally scheduled work hours over the two-week period before the injection.  Therefore, an employee who worked 20 hours per week during the two-week period before the injection would be entitled to two hours of COVID-19 Vaccine Paid Leave per injection.

4. Can employers require documentation from the employee?

Employers may require employees to provide written verification of the COVID-19 vaccine to be eligible for the paid leave.

5. Poster and Documentation Requirements

The Los Angeles County Department of Consumer and Business Affairs (“DCBA”) will be developing a poster that employers must post in a conspicuous place regarding the COVID-19 Vaccine Paid Leave.

Employers must keep payroll records to show compliance with this ordinance for four years.  This includes the employee name, address, occupation, dates of employment, rate of pay, and the amount paid.

“Arrows of neon and flashing marquees out on Main Street / Chicago, New York, Detroit and it’s all on the same street.”  (Truckin’, the 1970 song by the Grateful Dead.)

Earlier this year, the Ninth Circuit Court of Appeal ruled that California’s meal and rest break rules were unenforceable as to truckers carrying goods in interstate commerce, due to upholding a federal preemption decision by the Federal Motor Carrier Safety Administration (“FMCSA”).  (See, International Brotherhood of Teamsters, Local 2785 v. Federal Motor Carrier Safety Administration No. 18-73488, 2021 WL 139728 (9th Cir. Jan. 15, 2021).)

Now, on the exhaust fumes of that earlier preemption case, on April 28, 2021, the Ninth Circuit, in California Trucking Association v. Bonta, ruled that there is no federal preemption of California’s new independent contractor law, AB-5.

In this recent case, a three-judge panel of the Ninth Circuit Court has examined the Federal Aviation Administration Authorization Act of 1994 (“F4A”), which federal statute preempts any state law “related to a price, route, or service of any motor carrier . . . with respect to the transportation of property.”  49 U.S.C. § 14501(c)(1).  The Court found, in a 2-1 decision, that in 2020, the United States District Court for California, Southern District (San Diego) had abused its discretion when it enjoined the State of California from enforcing AB-5 against motor carriers doing business in California (on the ground that such enforcement was preempted by F4A).  (Our prior article on the District Court’s ruling can be read here.)

In reaching this conclusion, the Ninth Circuit Court determined that AB-5 did not directly nor acutely impact the “prices, routes or services” of a motor carrier, but rather, was simply a “generally applicable law” which did not effectively “bind” motor carriers to specific prices, routes, or services at the consumer level.

“Sometimes the light’s all shining on me / Other times I can barely see.  Lately, it occurs to me / What a long, strange trip it’s been . . . .”

You may recall that AB-5 has been often in the news.  First, AB-5 was codified, at section 2750.3 of the California Labor Code, as a judge-made test for classifying workers as either employees or independent contractors, known as the “ABC test.”  Second, in September 2020, the California legislature revised some of AB-5’s exemptions for certain business service providers and created additional exemptions with Assembly Bill 2257.  Third, in November 2020, California voters passed Proposition 22, which provided that app-based drivers who provide delivery and transportation services in the driver’s own personal vehicle, through a business’s online platform (such as Uber or Lyft), are independent contractors if certain conditions are met.

The ABC test includes three factors, and if the employer fails to establish all three, then the worker “shall be considered an employee rather than an independent contractor.”  Cal. Lab. Code § 2750.3(a)(1) (emphasis added).  The trade associations representing the trucking industry have expressed concerns over factor B, and rightfully so: whether the worker “performs work that is outside the usual course of the hiring entity’s business.” (Id., § 2750.3(a)(1)(B).)

The trial court found that, under factor B, “drivers who may own and operate their own rigs will never be considered independent contractors under California law.”  (Cal. Trucking Ass’n v. Becerra, 433 F. Supp. 3d 1154, 1165 (S.D. Cal. 2020) [with Rob Bonta being substituted in the appeal for his predecessor, Xavier Becerra, as California Attorney General].).

This made the ABC test become also known as an “all or nothing rule.”

The district court concluded, “there is little question that the State of California has encroached on Congress’ territory by eliminating motor carriers’ choice to use independent contractor drivers, a choice at the very heart of interstate trucking.”  Hence, the injunction was issued in 2020.

“Busted down on Bourbon Street / Set up like a bowling pin / Knocked down, it gets to wearing thin / They just won’t let you be.”

With the injunction no longer in force, the State of California’s anticipated enforcement of AB-5 (and the ABC test) will effectively compel a motor carrier to use employees for most services because, under the ABC test, a driver providing a service within an employer’s usual course of business would never be considered an independent contractor.

Circuit Judge Bennett, in his dissent, found this to be self-evident: “independent-contractor truckers hauling goods for the hiring entity are perforce not performing work outside the usual course of the hiring entity’s business, which is, of course, hauling goods.”  Thus, as the district court correctly found, motor carriers would have to “reclassify all independent-contractor drivers as employee-drivers for all purposes under the California Labor Code, the Industrial Welfare Commission [(IWC)] wage orders, and the Unemployment Insurance Code.”  (Id., at 1166.)

We concur with Judge Bennet’s dissent:  our analysis of the ABC test, as currently codified in section 2775 of the California Labor Code, means that AB-5 will likely eliminate motor carriers’ use of owner-operators (and their personally owned or leased specialized equipment) to accommodate fluctuations in supply and demand, especially given that California’s Industrial Wage Order “(IWC”) No. 4-2001(9)(B) requires employers to supply their employees’ tools and equipment.

“Truckin’ I’m a going home / Whoa, whoa, baby, back where I belong / Back home, sit down and patch my bones / And get back truckin’ on.”

However, two other federal circuits have signaled that “all or nothing” rules, like California’s ABC test, are or should be preempted.

Moreover, the Ninth Circuit previously found that the F4A statute (at issue) did in fact preempt a city-imposed concession agreement that motor carriers should transition to using employees only to operate at the Port of Los Angeles; this was due to a finding that the concession agreement would possibly force motor carriers to change their price, routes or services “in a way that the market would not otherwise dictate.”  (Am. Trucking Ass’ns, Inc. v. City of L.A., 577 F. Supp. 2d 1110, 1117 (C.D. Cal. 2008).)

With such differences in opinions, this latest decision may be appealed to the U.S. Supreme Court.  Unless and until review is granted or a rehearing held before the Ninth Circuit, en banc, however, motor carriers should now be analyzing how best to proceed in California, as its rules are no longer “all on the same street.”

With the increased interest in cryptocurrencies, like Bitcoin and Ethereum, the employment lawyer in me started thinking about whether it would be legal for employers to pay employees in cryptocurrency.  NFL player Sean Culkin was already one-step ahead of me, and last month said he may want his $920,000 salary from the Kansas City Chiefs paid in Bitcoin.  Here are five issues employers should understand about cryptocurrencies and the blockchain, and how it will likely impact the employment setting in the next few years:

1. What is a cryptocurrency and the blockchain?

Cryptocurrencies, such as Ethereum and Bitcoin, are virtual currencies that exits on the blockchain.  A blockchain is a type of database, but by using blockchain technology it is much more secure than a standard database and allows many different people to access and record transactions at the same time.  At the time of publishing this article, Bitcoin and Ethereum are the two largest cryptocurrencies (“crypto”) by market capitalization.  More information about cryptos can be read here.  A very detailed explanation about cryptos and how blockchains work can be read here.

2. Can employers pay wages in forms other than U.S. currency, such as in Bitcoin or Ethereum?

Paying employees in crypto could be used to attract talent or make payments to employees located around the world easier for a multinational company.  But would it be legal?  Under federal law, the Federal Labor Standards Act (“FLSA”) mandates “payments of the prescribed wages, including [minimum wage and] overtime compensation, in cash or negotiable instrument payable at par.” 29 CFR § 531.27(a).  Presumably, one could make the case that a payment to an employee in crypto would be a payment “at par” as long as the conversion rate was equal to the applicable minimum wage rate or other required salary amounts to meet the definition of an exempt employee.  Indeed, the Department of Labor has stated in the past that employers could combine the value of U.S. Dollars and foreign currency “in order to satisfy the minimum salary requirement for the application of the Fair Labor Standards Act (FLSA) executive, administrative, and professional exemption.”  If crypto is accepted as a valid currency, it seems reasonable that crypto should be treated similarly to foreign currencies in this regard.

Under California law, Labor Code section 200(a) defines wages as “all amounts for labor performed by employees of every description, whether the amount is fixed or ascertained by the standard of time, task, piece, commission basis, or other method of calculation.” There is no specification that wages must only be paid in U.S. Dollars.  California courts have also held that wages are “not only the periodic monetary earnings of the employee but also the other benefits to which he is entitled as a part of his compensation.” Wise v. Southern Pacific Co. (1970).  Wages can include money, room, board, clothing, vacation pay (a form of deferred compensation) and sick pay.

California Labor Code section 212 also prohibits employers from paying employees in “script, coupon, cards, or other thing redeemable, in merchandise or purporting to be payable or redeemable otherwise than in money.”  This section was designed to make it illegal for employers to pay employees with a coupon that was only redeemable at the “company store”, a past practice documented in the song “Sixteen Tons” written by Merle Travis.

A California court explained, “The accepted purpose of Labor Code section 212 is to prevent employers from paying wages by giving orders … payable only in goods, or orders of an indefinite nature not payable on demand, but at some future time, or paychecks which cannot be honored because of the drawee’s insufficient funds.”  Brown v. Superior Court (2011).  However, since cryptocurrency is a form of “money,” and Labor Code section 212 does not specifically require U.S. currency, there is an argument that section 212 does not prohibit payment of wages in cryptocurrency.  As set forth above, “wages” under California Labor Code section 200 can take many forms, not just fiat currency.

Until there is further guidance on this issue under the FLSA and California law, employers who are looking to pay employees in crypto could take a hybrid approach.  The employer could avoid many of these foundational issues by paying the employee minimum wage or the required salary needed to meet an exemption in U.S. Dollars, and then offer the employee additional payment in crypto.  While employers considering this type of hybrid approach would still need to be careful not to run afoul various federal, state, and local regulations, the approach would remove some of the more fundamental issues that the legal system will need time to develop regulations to catch up to the technology.

3. California’s additional restrictions on forms of wages.

Employers considering paying employees in crypto would also need to navigate other areas of the California Labor Code.  For example, Labor Code section 212 California requires that wages must be payable without discount.  Therefore, any transaction fees that an employee must pay to redeem or access the cryptocurrency would violate this provision.  Moreover, Labor Code section 212 requires payments by “order, check, draft, note, memorandum, or other acknowledgement of indebtedness” to show the name and address of an establishment within California where the instrument can be redeemed.  Since crypto is virtual, it is an open question regarding how this requirement would apply to payments made to employees.  It also raises the potential argument that since crypto currency is not “negotiable and payable in cash, on demand…at some established place of business in the state,” it is not a valid form of “money” to make payments to employees.  On the other hand, it could be argued that crypto is redeemable anywhere in California with an internet connection, and an employee can “cash” their crypto into their bank account almost instantaneously.

4. Value fluctuation issues.

With the volatility of cryptocurrency, there could also be potential issues regarding the value of the cryptocurrency in terms of when it is paid to employees.  Given the volatility of crypto, there could be wide valuation fluctuations even from the end of the payroll period to the time that the employee receives the payment.  There would also be potential calculation issues regarding the appropriate conversion rate employers would need to make if an employee was owed past unpaid wages, or premium wages for missed meal or rest breaks.  What if the crypto currency increased in value over 500% since the time it is determined that an employee was owed a premium wage for a missed meal break?  Could the employer pay the employee the value of the crypto at the time the missed meal break occurred, or would the employer need to pay the current increased value of the crypto?

5. Future potential of the blockchain in the employment setting.

Beyond cryptocurrency, the blockchain technology will likely become a part of everyday life and will have many applications in the employment context.  Since a blockchain is like a database that can store private information, the blockchain could be used by employees to prove educational history, work history, and the attainment of certain certifications.  In 2017, Massachusetts Institute of Technology has issued students virtual diplomas recorded on the blockchain, that the students can securely share with whomever they choose.  Likewise, employers could utilize the technology to issue titles, internal certifications, and record dates of employment to create a digital record that employees could chose to share the information with when searching for another job or verifying salary for a loan.

Mediation is one of the aspects of litigation that can be confusing for parties in a lawsuit, but there are few rules to understand about the process that can make it a lot less daunting.  Mediation is a non-binding meeting where the parties in a lawsuit hire an independent mediator (a retired judge or lawyer) to try to reach a settlement.  Here are five rules a party should understand before attending a mediation:

1. The mediator will make you feel uncomfortable about your case.

As I wrote in a prior post, a mediator’s only role is to get the case settled.  He or she is not there to be your friend, not to tell you what they feel the case is worth, or to protect your opponent’s position.  Their job is to get a settlement.  Put yourself in the mediator’s position: you have two adversarial parties who hate each other and believe they will win if their case goes to trial.  How, as a mediator, do you get the parties to move off their respective beliefs?  You must attack both sides’ theory of the case by pointing out the weaknesses of each position.

So don’t take the attacks personally, or think that the mediator is only attacking your position.  If the mediator is persuasive about how weak your case is, she is equally persuasive to other side.  Understand that the attacks are not personal, are not necessarily how the mediator perceives the value of your case, but are a tool to get the case resolved.

2. Before the mediation, set a bottom walk-away number, but also a number that represents a goal.

It is important to know what your last best and final number is prior to going into the mediation.  Steve Pearl, a mediator, explains:

Experienced negotiators will set not only the walkaway numbers beyond which they will not move, but also goals that are better than those walkaway numbers. Parties who set “shoot for” numbers as their reference points typically do better than those who only formulate walkaway numbers.

However, just like almost every negotiation “rule” there are drawbacks in setting a walk-away numbers.  Pearl explains that sometimes parties may have to shift their reference points to resolve the case.  So, parties should have clear numbers set going into the mediation, but must also have a mechanism to reevaluate these goals if the case will not settle within these predetermined numbers.

3. Understand when being cooperative will help you get a better deal.

A party involved in a mediation must understand that there are two parts to a mediation: (1) the process and (2) the content.  The process is how you interact with the other party: are you cordial or you make small talk?  The content is the subject being negotiated, such as the dollar amounts.  A party that is cooperative about the process and competitive about the content will do better overall in a mediation than compared to a party that is competitive on both the process and content.

Think about how you interact with someone that is simply being a jerk to you on ever single issue, even issues that do not impact the subject being negotiated.  When dealing with the hyper-competitive negotiator, your guard goes up and the negotiation turns more personal.  This is a bad combination for attempting to reach a reasonable settlement.

4. Understand what you should and will say during the mediation.

As a party, you need to understand from your attorney how the process will work.  Will there be a joint session with the other counsel and party in the same room?  Or will all parties remain in separate rooms?  During COVID-19 how will the Zoom meeting take place?

Generally speaking, what is said during a mediation is confidential.  However, if a party makes an admission or statement during the mediation, if the case does not settle, the opposing party can then seek discovery to obtain that same information through other means in order to use in the case.

Work out with your attorney when you should speak and what you should say.  Also important is to be careful on how you react to the mediator when he or she presents counteroffers.  The mediator is likely watching your reaction to gauge where you as the decision maker ultimately stand.

5. If you make a “last, best and final offer,” make it your last best and final offer.

Parties’ statements made during a mediation must have credibility.  If you make a “last, best and final offer” during a mediation, and the other side rejects the offer, but you continue to negotiate, you have lost credibility with the other party and the mediator.  As a result, even if you continue to negotiate and truly reach your last, best and final offer, the other side (and the mediator) will not believe that is your final number and will continue to push you beyond this number.  There are occasions to make a last, best and final offer, but if you qualify your offer as such, be ready to walk out of the mediation if the offer is rejected.

Being named as a defendant in an employment class action or Private Attorneys General Act (PAGA) representative lawsuit can be overwhelming, especially for a growing company.  However, a company can minimize the impact of litigation on its existing operations and put forth the best defense with some planning and good strategic advice.  Here are five initial steps a company can take upon being notified of a pending class action or PAGA lawsuit.

1. Contact employment counsel.

A lawyer who has experience in employment law and class actions should be contacted as soon as possible. There are certain deadlines that begin to run when a lawsuit is filed, and any delay could adversely affect the company’s defense. Wage and hour litigation, especially in California, is very unique, and it is recommended that the company utilize a lawyer that has experience in this area.

Word usually starts to spread quickly among the employees about the existence of the lawsuit. The company, with advice from counsel, should determine whether it wants to be proactive about communicating with the employees about the lawsuit, as well as what can and cannot be said to employees.  At the minimum, a person within the company should be designated to handle any questions about the lawsuit.  This will ensure a consistent message is used.

2. Obtain arbitration agreement signed by plaintiff, plaintiff’s personnel file, and time records.

If the company has implemented an arbitration agreement, it will be important to determine if the plaintiff has signed it, and if it bars the plaintiff from bringing a class and representative action. If there is a binding arbitration agreement in place, a motion to compel arbitration will likely be one of the first motions filed with the court.

In addition, the personnel file for the named plaintiff will need to be produced at some point in the case, and it should be provided to counsel as soon as possible.  Also, the information in the personnel file will document any performance issues or other possible defenses the company has against the plaintiff’s allegations.

3. Review allegations with counsel to see if the safe harbor provision of the Private Attorney General Act could apply.

With the advice of counsel, there should be a review of both the allegations in the complaint, and if the plaintiff is seeking damages under PAGA, also the PAGA notice sent to the Labor Workforce & Development Agency (“LWDA”). PAGA provides the employer a short window of time to “cure” some alleged violations. Whether or not any items can be cured or need to be cured, and the process for utilizing this safe harbor, should be reviewed closely with counsel.

4. Begin constructing a list of all employees who have worked in similar positions as the plaintiff during the last four years.

In California, the statute of limitations for most wage and hour class actions is four years from the date the complaint is filed. The statute of limitations for PAGA claims is one year. Therefore, the employees who have worked in the same or similar positions as the plaintiff will likely be the group of employees the plaintiff is seeking to represent in the class action and PAGA representative claim.  It is important to know how many of these employees are potentially included in the case.

5. Gather employee handbooks and policies that were in effect during the last four years.

The litigation will likely revolve around what policies the company had in place, and whether the policies were legally compliant. The company’s counsel will have to review these policies and handbooks.

Late last week, California enacted SB 93, requiring specific hospitality employers to offer employees laid-off due to COVID-19 preference for new positions between now and December 31, 2024. The new law is similar to a bill the governor vetoed last year, AB 3216.

Hospitality employers should read below to determine whether this new law applies, and, if so, the requirements to implement a compliant preference system.

What Employers are Covered by SB 93?

SB 93 applies to the following “enterprises”:

  • Hotels containing 50 or more guest rooms.
  • Any contracted, leased, or sublet premises connected to or operated in conjunction with a hotel or providing services at the hotel. This might include, for example, a restaurant that leases space at a hotel.
  • Private clubs that have 50 or more guest rooms offered as overnight lodging to members.
  • Event centers of more than 50,000 square feet or 1,000 seats, including concert halls, stadiums, sports arenas, racetracks, coliseums, and convention centers.
  • Any contracted, leased, or sublet premises connect to or operated in conjunction with an event center, including food preparation facilities, concessions, retail stores, restaurants, bars, and parking structures.
  • Airport hospitality operations which prepare, deliver, inspect, or provide any other service in connection with the preparation of food or beverage for aircraft crew or passengers at an airport, or that provide food and beverage, retail, or other consumer goods or services to the public at an airport.
  • Airport service providers which contract with a passenger air carrier, airport facility management, or airport authority, to perform functions at the airport directly related to the air transportation of persons, property, or mail. This includes loading and unloading of property, security, ticketing, aircraft cleaning and sanitization functions, and waste removal.
  • Providers of building service (janitorial, building maintenance, or security services) to office, retail, or other commercial buildings.

The airport-related enterprises do not include air carriers certified by the FAA, and do not apply to military bases or federally operated facilities.

SB 93 applies even to successor employers, including in circumstances where there has been a change in ownership, sale of the business, or relocation of operations. The law applies to all qualifying employers, regardless of size.

What Employees are Eligible?

For a laid-off employee to qualify, the following conditions must be met:

  1. The employee was employed by the employer for 6 months or more in 2019, working at least 2 hours a week during that time.
  2. The employee’s most recent separation from active service was due to a reason related to the COVID-19 pandemic, including:
    1. Public health directive;
    2. Government shutdown order;
    3. Lack of business;
    4. Reduction in force; or
    5. Other economic, nondisciplinary reason due to the COVID-19 pandemic.
  3. The employee must be qualified for the position. An employee is qualified if the employee held the same or similar position at the time of layoff.

How Does the Process Work?

Within 5 business days of establishing a job position, an employer must offer all job positions that become available to qualified laid-off employees. The offer must be in writing, either by hand or to the last known physical address, and by email and text message if the employer has that contact information. The laid off employee must be given at least five business days from receipt to accept or decline the offer.

If more than one laid-off employee is qualified for a position, preference goes to the individual with the greatest length of service. An employer can make simultaneous, conditional offers of employment to multiple laid-off employees; if more than one accepts, the one with the greatest length of service prevails.

If an employer declines to recall a laid-off employee and instead hires a non-qualifying individual, the employer must provide written notice to the laid-off employee within 30 days containing (1) the length of service of the individual hired; and (2) all reasons for the decision.

How is SB 93 Enforced?

The Division of Labor Standards Enforcement (DLSE) has exclusive enforcement jurisdiction. If a laid off employee files a complaint that an employer refused to employ, terminated, reduced the compensation of, or otherwise took any adverse action against an employee for asserting rights under SB 93, the DLSE can award relief including reinstatement, front and back pay, and compensation for benefits lost. The DLSE can also impose civil penalties of $100 plus liquidated damages of $500 per employee per day.

Liability is not limited to the employer, but can be extended to any person, including corporate officers and executives, who owns or operates an enterprise and exercises control over the wages, hours, or working conditions of employees.

Anything Else?

Yes, there are record-keeping requirements! For at least three years, measured from the date of written notice of an employee’s layoff, the employer must retain specified information about the employee, contact information, written layoff notices, and records of communications with the employee regarding job offers.

This state law does not restrict localities from implementing their own “right of recall” ordinances. Several have, particularly in the Los Angeles area.

The above is just a summary of the basic provisions of the new law. If you believe your business may be subject to SB 93, you should consult legal counsel to make sure you fully understand and implement these new requirements.

On Friday, we replayed our March 23 webinar covering various topics including the American Rescue Plan’s renewal of FFCRA benefits and California’s brand new COVID-19 Supplemental Paid Sick Leave (SB 95). In both the original run and the replay, we got tons of great questions from employers about these two new laws. Below are answers to a few of the most common questions we get.

If an employee took paid leave in 2020 under the FFCRA, do I have to provide them new paid leave in 2021?

Yes and no. Whereas FFCRA paid sick and family leave was mandatory for covered employers last year, the renewed FFCRA for 2021 is optional. Eligible employers can elect to make FFCRA leave available to employees, but are not required to do so. Because California employers have corresponding mandatory leave obligations under California law (including COVID-19 Supplemental Paid Sick leave and Cal/OSHA exclusion pay), California employers may prefer to provide FFCRA leave in order to take advantage of the payroll tax credits available exclusively under the federal law.

If an employer does elect to make FFCRA leave available to employees, then the amount of leave available resets from 2020. So, employees who used any or all of their 2020 FFCRA leave would be entitled to new leave for 2021. Employees who did not use all of their 2020 FFCRA leave cannot carry it over into 2021 (except to the extent they were on a qualifying leave that started in 2020 and carried over into 2021).

If an employee was out of work in January or February 2021 for reasons that would qualify under the Supplemental Paid Sick Leave, do I have to go back and pay them for that time?

Yes…but only if they ask for it. SB 95, the law enacting COVID-19 Supplemental Paid Sick Leave, went into effect on March 29, 2021, but the paid leave is available for qualifying leaves retroactive to January 1, 2021.

That does not mean the employer has to unilaterally make retroactive payments. Rather, an employer’s obligation to make retroactive payments arises only if the employee makes an oral or written request. Once the employee makes the request, the employer has to make the retroactive payment on or before the payday for the next full pay period after the request.

Is the employee required to provide documentation to support COVID-19 Supplemental Paid Sick Leave eligibility?

No, says the Labor Commissioner. An employee is entitled to leave upon oral or written request, and an employer cannot condition leave or payment on medical certification or other documentation. On the other hand, if the employer has information indicating an employee was not truthful about the qualifying reason for the leave—e.g., “Bill says he needed to quarantine last week, but his social media account has pictures of him at the beach every day.”—then an employer could request documentation. (It’s always best to get legal counsel to advise on such issues.)

I paid an employee exclusion pay under Cal/OSHA back in February. Can I get any COVID-19 Supplemental Paid Sick Leave credit for that? If the employee requests CV-19 SPSL for that time, do I have to pay them twice?

You do not have to pay them twice. You can potentially claim a credit for that pay, but you have to act fast. For any qualifying leave taken in 2021 for which the employee was provided paid leave—for example, as Cal/OSHA exclusion pay or as a voluntary benefit, excluding vacation—the employer can credit that leave against the employee’s available COVID-19 Supplemental Paid Sick Leave, provided the leave was for a qualifying reason and either the employee was paid the applicable rate of pay or the employer makes a retroactive catch-up payment.

However, keep in mind that the employer is also obligated to advise each employee of the amount of available supplemental paid sick leave, either on a wage statement or a separate written notice provided on payday. So, to claim retroactive credit for any paid leave provided earlier this year, the employer probably needs to calculate that credit now so that the available leave reported to the employee reflects this deduction. In other words, you should not wait for the employee to take leave in the future before calculating any credit you intend to claim.

“Fomite” is a medical term that refers to inanimate objects that can carry infectious agents to a new host.  The concept of a fomite in the medical context is a valuable concept that can be applied in management, human resources, and employment context.  It is critical for companies and managers to apply the lessons from fomites in the medical context to the employment context and in developing a company culture:

1. What are fomites in the employment context?

The medical concept of a fomite has many similar applications and lessons for managers.  The effect that fomites in the employment context can have on a workplace culture is enormous, and being able to recognize the difference between a fomite and a virus in the employment context is critical.  Just to be clear – I’m not referring to “fomites” in the medical sense, but am borrowing the term to use in a managerial, human resources, and employment context.

2. Fomites can take many forms in the workplace.

Items that can negatively impact the workplace (which I’ll borrow another medical term and refer to as contagion) can spread through different ways.  The fomite that spread this contagion in the workplace can take many types of forms: other employees, managers, issues, gossip, clients, workplace habits, how meetings are run, and workplace culture.  Fomites, as I use the term here, does not only have to be people, but it could also refer to ideas or practices in the workplace.  Unlike how the term is used in the medical context which refers to inanimate objects, fomites in the workplace can also be an idea or practice.

3. Fomites are not ill-intentioned.

It is important to note that a fomite is not the disease or germ that it is carrying.  The co-worker, employee, or supervisor is not the disease or virus, but they are the ones that are carrying the contagion.  Managers need to remember that the contagion, not the fomites, need to be attacked and eradicated.  Just as in the medical context, the fomite itself is not the virus, but it is instead something that is carrying the virus.

Also, in terms of personnel, fomites are not necessarily toxic employees.  Toxic employees hurt the work environment and company culture and need to be removed from the workplace.  Employees can be fomites when they act a certain way, say certain things, or fall into certain habits without consciously doing so, and this negatively impacts company culture.  However, it may be difficult to distinguish between a fomite and a toxic employee, and managers need to be careful in making this determination.

4. Fomites can spread contagion from outside of the workplace.

Like the medical context, in the employment arena fomites can bring contagion from outside of the workplace in to hurt company culture and employee morale.  Personal issues at home can have negative impacts at work.  Similarly, current events and politics can carry over from outside the employment environment into a company and negatively impact the workplace.  Managers must be careful to keep fomites from bringing outside viruses into the workplace.  However, just like a healthy immune system is exposed to some viruses, a workplace cannot be completely sterile, and a company culture must have some exposure to viruses to build an immunity.

5. Fomites can be critical to the company.

Just as in the medical context, fomites can be items that are critical to a company.  For example, in medical terms, skin is a fomite.  In the employment context, a manager can be a fomite.  Just as a body cannot survive without its skin, a company cannot survive without managers.  The key with recognizing fomites in the employment context is to recognize that it is not the managerial position or person filling that position that needs to be removed.  Companies must protect against the virus, not the fomites.