On July 3, 2020, the CDC issued revised guidance regarding the testing of employees for non-healthcare related workplaces – SARS-CoV-2 Testing Strategy: Considerations for Non-Healthcare Workplaces.  The CDC cautioned employers that the guidelines “are meant to supplement, not replace, any federal, state, local, territorial, or tribal health and safety laws, rules, and regulations with which workplaces must comply.”  Moreover, the CDC reminds employers that employers must use the guidelines in a “manner consistent with law and regulation, including laws protecting employee privacy and confidentiality. They should also be carried out consistent with Equal Employment Opportunity Commission guidance regarding permissible testing policies and procedures.”

Employers should review the California Department of Public Health’s memo to employers, Responding to COVID-19 in the Workplace, and ensure they are complying with all local requirements as well.

The CDC guidance discussing the following five testing strategies for non-healthcare workplaces:

1. Testing individuals with signs or symptoms consistent with COVID-19

Employees with COVID-19 symptoms should be separated from other people.  CDC recommends making the screening as private as possible to protect employee’s privacy.  Workers with COVID-19 symptoms should be referred to a healthcare provided for potential screening, and should remain home while waiting for test results.

2. Testing asymptomatic individuals with recent known or suspected exposure to SARS-CoV-2 to control transmission

The CDC recommends viral testing for all close contacts of person with COVID-19.  These individuals also need to be isolated.  The CDC notes that if an individual is tested early after contact with the virus, the test may not detect the virus.  Serial testing, tests done at different points in time, are more likely to detect the virus among close contacts of a COVID-19 case.

However, as the CDC notes, employers must be careful to follow additional regulations from state or local authorities regarding whether a negative test permits an employee to return to work.

The CDC also notes that a broad-based testing strategy may be appropriate for high-risk settings:

High-risk settings that have demonstrated potential for rapid and widespread dissemination of SARS-CoV-2 include:

  • High-density critical infrastructure workplaces
  • Workplaces where employees live in congregate settings (e.g., fishing vessels, offshore oil platforms, farmworker housing or wildland firefighter camps)
  • Workplaces with populations at risk for severe illness if they are infected, such as nursing homes

Employers are encouraged to consult with state, local, territorial, and tribal health departments to help inform decision-making about broad-based testing.

3. Testing asymptomatic individuals without known or suspected exposure to SARS-CoV-2 for early identification in special settings

The CDC sets forth when testing employees without symptoms may be appropriate “[w]hen communities experience moderate to substantial transmission…”  The CDC explains that workplace settings that may be appropriate for this type of testing include:

  • Workplaces where physical distancing is difficult and workers are in close contact (within 6 feet for 15 minutes or more) with co-workers or the public
  • Workplaces in remote settings where medical evaluation or treatment may be delayed
  • Workplaces where continuity of operations is a high priority (e.g., critical infrastructure sectors)
  • Workplaces providing congregate housing for employees (e.g. fishing vessels, offshore oil platforms, farmworker housing or wildland firefighter camps)

4. Testing to determine resolution of infection

The CDC sets forth different strategies for determining when an employee may return to work:  a symptom-based (i.e., time-since-illness-onset and time-since-recovery strategy), time based, or a test-based strategy. The CDC notes that “which strategy to use should be made in consultation with healthcare providers and public health professionals.”

Los Angeles County takes the position that “asymptomatic persons with laboratory confirmed COVID-19 are considered infectious 48 hours before the date of their first positive molecular test (sometimes called a PCR test) until 10 days after that initial positive test.”

Los Angeles County also requires a 14-day quarantine for employees who have had close contact with a confirmed case, and testing does not permit the employee to return to work sooner:

As a result, testing does not expedite return to work for close contacts. As mentioned above, a negative test in a close contact does not mean they are not infected. Close contacts may not leave quarantine until they have remained symptom free for 14 days.  Asymptomatic employees with a positive COVID-19 test may be released from isolation and return to work 10 days after the initial positive test, barring the development of symptoms.

Requiring A Doctor’s Note – CDC Changes Position

In prior guidance, the CDC set forth that employers should not require a doctor’s note for an employee to be able to return to work.  In this July 3 guidance, the CDC has changed this position, and sets forth the following:

Under the Americans with Disabilities Act, employers are permitted to require a healthcare provider’s note to verify that employees are healthy and able to return to work. However, as a practical matter, employers should be aware that healthcare provider offices and medical facilities may be extremely busy during periods of community transmission of SARS-CoV-2 and may not be able to provide such documentation in a timely manner. In such cases, employers should consider not requiring a healthcare provider’s note for employees who are sick to validate their illness, qualify for sick leave, or to return to work.

Los Angeles County recommends that employers do not require a doctor’s note to permit an employee to return to work.  Los Angeles County has stated that in order “[t]o help us avoid overburdening the health system, you should not require a healthcare provider’s note either to justify the absence of an employee who is sick with respiratory disease or to permit the employee to return to work.”

5. Public health surveillance for SARS-CoV-2

Surveillance testing can be conducted to detect transmission hot spots or to understand disease trends in the workplace.  The CDC notes that surveillance testing should only be done if the “results have a reasonable likelihood of benefiting workers.”  Surveillance testing raises many privacy and confidentiality issues in the workplace, and employers should approach such testing very carefully and with guidance for health authorities and advice from counsel.

Effective January 1, 2015, Labor Code section 2810.3 expanded California employer’s liability beyond its own employees, and made certain employers jointly liable for wage and hour violations committed by “labor contractors,” such as staffing agencies.  Here are five items California employers must understand about this joint employer liability:

1. Labor Code section 2810.3.

Effective January 1, 2015, Labor Code section 2810.3 expanded the liability of “client employers” that obtain workers through temporary agencies or other labor contractors.  The law requires that the client employer who obtains the workers through the agency must share in the liability for any wage and workers compensation issues.  The law also provides that a client employer cannot shift all of the liability for wage and workers’ compensation violations.

2. Labor Code section 2810.3 excludes employers based on size.

Labor Code section 2810.3 states that “client employer” does not include any of the following companies based on size:

(i) A business entity with a workforce of fewer than 25 workers, including those hired directly by the client employer and those obtained from, or provided by, any labor contractor.

(ii) A business entity with five or fewer workers supplied by a labor contractor or labor contractors to the client employer at any given time.

3. Companies contracting for services need to ensure the subcontractors follow all applicable wage and hour laws and pay the employees properly.

With the joint liability created by Labor Code section 2810.3, companies contracting for labor at their establishments need to take steps to ensure that the contractors are following wage and hour laws.  This may entail reviewing the contractor’s pay practices.  The hiring company should also ensure that there are some assets or potential insurance that would be available should indemnity be required.

4. California Labor Commissioner held Cheesecake Factory liable for $4.57 million for wage and hour violations under Labor Code section 2810.3.

Cheesecake Factory restaurants in Southern California were cited for $4.57 million for wage and hour violations and penalties by the Labor Commissioner in June, 2018.  The citation was based on alleged wage violations for employees of contractors hired by Cheesecake Factory, not its own employees.  The investigation focused on the janitorial subcontractors who performed work at the restaurants.  The Labor Commissioner found that the janitorial employees were not paid for all minimum wage, overtime, not provided meal and rest breaks, and not paid for split shifts.

The subcontractor janitorial company was Americlean Janitorial Services Corp., a Minneapolis company doing business as Allied National Services, Inc. The workers were managed by a San Diego-based company, Magic Touch Commercial Cleaning.  The Labor Commissioner alleged that the workers had to work additional hours when asked to complete tasks or wait for approval of their work by the Cheesecake Factory managers.

5. Consider indemnity agreements with staffing agencies and labor contractors.

Labor Code section 2810.3 provides that the client employer can seek indemnity from the labor contractor for violations.  The hiring company should consider negotiating an indemnity provision in the contact with the labor contractor to protect itself should any wage and hour liability that arises.

I have published this post since 2015 recognizing the Fourth of July (one of my favorite holidays).  Hopefully I’ll be able to keep publishing it for many years to come.  Wishing you a great Fourth, and hope you have some time to put aside your work for a bit and enjoy some time with your family.  Happy Fourth!

Five things I’m thankful for this Fourth of July:

1.     For the great risk and sacrifice our Founding Fathers took to establish the country. 

When learning about the Founding Fathers in high school history class I did not have a perspective about the risks the Founders took in establishing the country.  Only now that I have a business, a family, and am relatively successful, can I realize the huge risks the Founders took.  By all means, they were the establishment, the elite of the American society, and if anyone had an interest in preserving the status quo, it was them.  Their sacrifices of life (theirs and their family members) and their fortunes helped build the foundation we benefit from today.

2.     The ability to speak freely and practice or not practice any religion I want.

It is great being able to freely speak your mind and believe in whatever you want.  It is also great be free to practice (or not) any religion you want.  We live in a very tolerant society, and it is even better when the government is not telling you how to live your life.  It is important to remember that throughout history, this has been the exception for how a government normally behaves.

3.     Our Country’s ability to attract creative people.

People that like creating things and being productive want to practice their trade where the government will basically leave them alone and provide a good environment to protect their gains derived from their hard effort (see item #5 below).  The U.S. provides this environment, and that is why so many people come to the U.S. to create a business or to practice their trade.  It is also important to recognize how lucky we are to have been born in the U.S.

4.     My right to practice any profession and access to unlimited resources to learn the required skills.

No one is dictating what students need to be after they graduate high school or college.  Everyone is free to pursue their interest, and the market decides the value of the effort.  With basically any information freely available on the Internet, anyone can learn almost any skill, and like no other time in human history individuals have an almost free method to sell their services or products over the Internet.  In your mid-40’s and want to make a career change?  Perfect, and you don’t even need to go back to school as the information is freely available on the Internet.  Didn’t finish college and are 20 years old with an idea?  Perfect.  Venture capitalists don’t care about your pedigree, they are only interested if you work hard and don’t give up.

5.     Our legal system.

Yes, it sounds trite.  But while I don’t think our legal system is perfect by any means, it is the best system established in the history of mankind.  Everyone living in the U.S. presently is very lucky to have this benefit.  It is a foundation for many of the items I mentioned above.  Because people have a good basis for predicting the outcomes of their actions, such as being able to retain property legally obtained, and knowing if someone breaches a contract there will be repercussions, it creates an environment that attracts hard effort and the best talent from around the world.  This is why the U.S. has been the leader in ideas and new businesses.  However, just because the system is established it does not mean our work is done.  We have to be vigilant not to lose the fairness, reasonableness, and lack of corruption in the legal system.

Happy Fourth of July. No parade, beach festivities, or restaurants to go to this year, but I’m still looking forward to grilling some steaks and going for a run.

Governor Newsom announced today that all dine-in at California restaurants must stop immediately for certain counties for the next 3 weeks, due to a recent spike in COVID-19 cases. Restaurants can continue outdoor dining and pick-up and delivery services.  Bars must close all operations even if they are operating outdoors.

As of July 1, 2020, the impacted counties include: Contra Costa, Fresno, Glenn, Imperial, Kern, Kings, Los Angeles, Merced,  Orange, Riverside, Sacramento, San Bernardino, San Joaquin, Santa Barbara, Santa Clara, Solano, Stanislaus, Tulare, and Ventura.

Here is a short video from our recent webinar describing the Governor’s actions today:

This Friday’s Five highlights five recent recordings of common questions we are hearing from California businesses during the last few weeks of June 2020.

1. Coronavirus Reasonable Accommodation Requests

ZLG partner, Anne McWilliams, gives an overview of employees who may qualify for certain accommodation requests during the coronavirus pandemic. Anthony Zaller follows with a discussion on a recent case (EEOC v. Baystate Medical Center), regarding an employee who believed they were unlawfully terminated.

 

2. US Supreme Court Ruling on Sex Discrimination and Title VII

ZLG partner, Anthony Zaller, discusses the new ruling by SCOTUS on Sex Discrimination in the workplace, as the Supreme Court holds that “An employer who fires an individual for merely being gay or transgender violates Title VII of the Civil Rights Act of 1964. Date of Recording: June 19, 2020.

 

3. LA County Health Department Inspections

ZLG partner, Anne McWilliams, discusses how the LA County Health Department is inspecting an increasing number of restaurants to make sure that they are compliant with California COVID-19 health guidelines. Date of Recording: June 19, 2020.

 

4. CDC’s “Return to Work Timeline” for Essential Workers Who Test Positive for COVID-19

Description: ZLG partner, Anthony Zaller, goes into detail about what an employer’s timeline should look like for bringing back essential workers that have tested positive for COVID-19.

 

5. New Face Cloth Covering Mandate in California

ZLG attorney, Rick Reyes, discusses the new mandate by the state of California, requiring all people in California-subject to certain restrictions-to wear face coverings when going out in public. Date of Recording: June 19, 2020.

 

Here is a short summary of five best practices for hotels reopening in Los Angeles (this is just a summary adopted from a presentation I provided to a group of hotel owners, and not a substitute for reviewing the applicable federal, state and local regulations):

1. Highlights from Los Angeles County’s protocol applicable to hotels.

  • Los Angeles County’s reopening protocol requires hotels to provide accommodations for vulnerable staff. It sets forth that vulnerable staff (those above age 65, those who are pregnant, and those with chronic health conditions) should be assigned work that can be done from home whenever possible, and should discuss any concerns with their healthcare provider or occupational health services to make appropriate decisions on returning to the workplace.
  • Hotels need to develop and have a plan in place for positive cases:
    • Isolate themselves; self-quarantine of all employees who had exposure; should consider plan to have quarantined employees tested.
    • If there are 3 or more known cases within 14 days the hotel must report to Dept. of Public Health.
  • Cleaning & Sanitizing: Consider reducing business hours for extra deep cleaning.
  • Written, worksite-specific COVID-19 plan
  • Copies of protocol distributed to all employees
  • Physical distancing:
    • Housekeeping is only performed when guests are not present
    • Elevators limited to 4 individuals or a family at a time and all riders must wear face covering
  • Facility Safety: To the extent possible, log guests: name, phone number and email address
  • Cleaning & Sanitizing: Housekeepers are provided PPE for cleaning.
    • Housekeeping employees are provided gloves when removing dirty linens. Dirty linen is placed in a single-use, sealed bag.
  • Copy of the protocol posted at all public entrances to facility
  • Guests are notified of policies and procedures prior to arrival
  • Signage is posed at the hotel (see examples in protocol)
    • Employee Health & Hygiene: Reinforce employee training on health and safety guidelines with periodic refresher trainings
    • Facility Safety: Log all employees that come on-premise for purposes of supporting public health contact tracing

2. Los Angeles County’s requirements for face coverings in hotels.

Employees

All employees who have contact with the public or other employees during their shift(s) are offered, at no cost, a cloth face covering. The covering is to be worn by the employee at all times during the workday when in contact or likely to come into contact with others. Employees need not wear a cloth face covering when the employee is alone.

Employees are instructed on the proper use of face covering, including the need to wash their face coverings daily.

Housekeepers and others who must enter guest rooms are directed to wear a cloth face covering.

Bellman/Porters are to wear face coverings and utilize gloves when handling guest baggage. Where possible, baggage deliveries are to be placed in the room by the guest.

Guests

Guests must wear face covering in elevators.

Guests are instructed that they must wear cloth face coverings whenever they are not eating and/or drinking; this includes upon entry to the facility, when walking anywhere in the facility, and when using the restrooms. This applies to all adults and to children over the age of 2. Only individuals with chronic respiratory conditions or other medical conditions that make the use of a face covering hazardous are exempted from this requirement.

Customers who refuse to wear a cloth face covering may be refused service and asked to leave.

Guests will be provided face coverings upon entry to the hotel if they do not have one.

3. Los Angeles City Guidelines.

  • Process to log all employees on site
  • If there is a positive case at the hotel:
    • Inform guests (not clear on this requirement)
    • Ensure all those who have come in contact are tested before returning to work
    • If testing is not possible, inform coworkers that had close contact to self-quarantine and self-monitor for symptoms per public health guidance
    • Consider written plan on how to inform coworkers and how they can get tested/self-quarantine
  • Refresher training courses on social distancing, cleaning, and PPE
  • Provide copy of COVID-19 related safety and health plan to employees and document receipt
  • Presumptive case in affected guest room: shall not be returned to service until undergoing an enhanced cleaning and disinfecting utilizing EPA approved products within CDC guidelines, ideally by a licensed 3rd party
  • Examples of signs located at end of guidance: https://corona-virus.la/sites/default/files/inline-files/20200612%20LA%20Resuming%20Operations%20Playbook%20-%20Hotels.pdf

4. Compliance with City of Los Angeles 5-day notice and priority of recall ordinance.

Under City of Los Angeles Ordinance 186602, the City requires covered employers to offer laid off workers their positions or similar positions based on the workers seniority with the employer.  The Ordinance defines “Hotel Employer” as “owner, operator or manager of a residential building in the City designated or used for public lodging or other related service for the public and either contains 50 or more guestrooms or has earned gross receipts in 2019 exceeding $5 million.  A Hotel Employer includes the owner, operator, manager or lessee of any restaurant physically located on hotel premises.”

Workers have no less than 5 business days to accept or decline the offer for the position.

5. To the extent a hotel operates another facility, such as a restaurant or golf course, the applicable protocol for those industries must also be followed.

County of Los Angeles protocol for in-person dining: http://www.publichealth.lacounty.gov/media/Coronavirus/docs/protocols/Reopening_Restaurants.pdf

County of Los Angeles protocol for golf courses: http://www.publichealth.lacounty.gov/media/Coronavirus/docs/protocols/Reopening-GolfCourses.pdf

The City of Los Angeles website:  https://corona-virus.la/Business

City of Los Angeles Protocol for restaurants: http://publichealth.lacounty.gov/media/coronavirus/docs/protocols/Reopening_Restaurants.pdf

The EEOC provided additional information this week on its website, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.”  Here are five new questions and answers published by the EEOC employers should understand:

D.13.  Is an employee entitled to an accommodation under the ADA in order to avoid exposing a family member who is at higher risk of severe illness from COVID-19 due to an underlying medical condition? (6/11/20)

No.  Although the ADA prohibits discrimination based on association with an individual with a disability, that protection is limited to disparate treatment or harassment.  The ADA does not require that an employer accommodate an employee without a disability based on the disability-related needs of a family member or other person with whom she is associated.

For example, an employee without a disability is not entitled under the ADA to telework as an accommodation in order to protect a family member with a disability from potential COVID-19 exposure.

Of course, an employer is free to provide such flexibilities if it chooses to do so.  An employer choosing to offer additional flexibilities beyond what the law requires should be careful not to engage in disparate treatment on a protected EEO basis.

G.6.  As a best practice, and in advance of having some or all employees return to the workplace, are there ways for an employer to invite employees to request flexibility in work arrangements? (6/11/20)

Yes.  The ADA and the Rehabilitation Act permit employers to make information available in advance to all employees about who to contact – if they wish – to request accommodation for a disability that they may need upon return to the workplace, even if no date has been announced for their return.  If requests are received in advance, the employer may begin the interactive process. An employer may choose to include in such a notice all the CDC-listed medical conditions that may place people at higher risk of serious illness if they contract COVID-19, provide instructions about who to contact, and explain that the employer is willing to consider on a case-by-case basis any requests from employees who have these or other medical conditions.

An employer also may send a general notice to all employees who are designated for returning to the workplace, noting that the employer is willing to consider requests for accommodation or flexibilities on an individualized basis. The employer should specify if the contacts differ depending on the reason for the request – for example, if the office or person to contact is different for employees with disabilities or pregnant workers than for employees whose request is based on age or child-care responsibilities.

Either approach is consistent with the ADEA, the ADA, and the May 29, 2020 CDC guidance that emphasizes the importance of employers providing accommodations or flexibilities to employees who, due to age or certain medical conditions, are at higher risk for severe illness.

Regardless of the approach, however, employers should ensure that whoever receives inquiries knows how to handle them consistent with the different federal employment nondiscrimination laws that may apply, for instance, with respect to accommodations due to a medical condition, a religious belief, or pregnancy.

H.1.  The CDC has explained that individuals age 65 and over are at higher risk for a severe case of COVID-19 if they contract the virus and therefore has encouraged employers to offer maximum flexibilities to this group.  Do employees age 65 and over have protections under the federal employment discrimination laws? (6/11/20)

The Age Discrimination in Employment Act (ADEA) prohibits employment discrimination against individuals age 40 and older.  The ADEA would prohibit a covered employer from involuntarily excluding an individual from the workplace based on his or her being 65 or older, even if the employer acted for benevolent reasons such as protecting the employee due to higher risk of severe illness from COVID-19.

Unlike the ADA, the ADEA does not include a right to reasonable accommodation for older workers due to age.  However, employers are free to provide flexibility to workers age 65 and older; the ADEA does not prohibit this, even if it results in younger workers ages 40-64 being treated less favorably based on age in comparison.

Workers age 65 and older also may have medical conditions that bring them under the protection of the ADA as individuals with disabilities.  As such, they may request reasonable accommodation for their disability as opposed to their age.

J.1.  Due to the pandemic, may an employer exclude an employee from the workplace involuntarily due to pregnancy? (6/11/20)

No.  Sex discrimination under Title VII of the Civil Rights Act includes discrimination based on pregnancy.  Even if motivated by benevolent concern, an employer is not permitted to single out workers on the basis of pregnancy for adverse employment actions, including involuntary leave, layoff, or furlough.

J.2.  Is there a right to accommodation based on pregnancy during the pandemic? (6/11/20)

There are two federal employment discrimination laws that may trigger accommodation for employees based on pregnancy.

First, pregnancy-related medical conditions may themselves be disabilities under the ADA, even though pregnancy itself is not an ADA disability.  If an employee makes a request for reasonable accommodation due to a pregnancy-related medical condition, the employer must consider it under the usual ADA rules.

Second, Title VII as amended by the Pregnancy Discrimination Act specifically requires that women affected by pregnancy, childbirth, and related medical conditions be treated the same as others who are similar in their ability or inability to work.  This means that a pregnant employee may be entitled to job modifications, including telework, changes to work schedules or assignments, and leave to the extent provided for other employees who are similar in their ability or inability to work.  Employers should ensure that supervisors, managers, and human resources personnel know how to handle such requests to avoid disparate treatment in violation of Title VII.

Other questions addressed by the EEOC include:

E.3.  How may employers respond to pandemic-related harassment, in particular against employees who are or are perceived to be Asian?

E.4.  An employer learns that an employee who is teleworking due to the pandemic is sending harassing emails to another worker.  What actions should the employer take?

G.7.  What should an employer do if an employee entering the worksite requests an alternative method of screening due to a medical condition?

Remember, California state law may differ from the guidance issued by the EEOC.

We have received a lot of questions from restaurant businesses regarding the requirements of face coverings for employees and customers under the County of Los Angeles’ reopening guidelines.  Here is a compilation of the face covering requirements set forth in the County of Los Angeles’ Protocol for Restaurants Opening for On-Site Dining:

Employees

  • All employees who have contact with the public or other employees during their shift(s) are offered, at no cost, a cloth face The covering is to be worn by the employee at all times during the workday when in contact or likely to come into contact with others. Employees need not wear a cloth face covering when the employee is alone.
  • Face shields are provided and worn by wait staff and other employees when servicing customers not wearing a cloth face covering to eat and drink. The face shield is to be worn in addition to the cloth face covering. Cloth face coverings protect others from the wearer’s droplets; face shields help protect the wearer from other’s droplets.
  • All employees, vendors and delivery personnel have been provided instructions regarding maintaining physical distancing and the use face coverings when around others.
  • Physical distancing protocols should be used in any office areas, kitchens, pantries, walk-in freezers, or other high density high-traffic employee areas. Incidental contact is to be expected, however, the goal is to limit this to less than 15 minutes, preferably 10 minutes, and the employees are always wearing their face coverings.
  • Dishwashers are provided with equipment to protect their eyes, nose and mouth from contamination due to splash using a combination of face coverings, protective glasses, and/or face shields. Dishwashers are provided impermeable aprons and required to change frequently. Reusable protective equipment such as face shields and glasses are to be properly disinfected between uses.

Customers

  • Customers are instructed that they must wear cloth face coverings whenever they are not eating and/or drinking; this includes upon entry to the facility, when walking anywhere in the facility, and when using the restrooms. This applies to all adults and to children over the age of 2. Only individuals with chronic respiratory conditions or other medical conditions that make the use of a face covering hazardous are exempted from this requirement.
  • Customers may remove cloth face coverings while seated at a table and eating and/or drinking.
  • Customers who refuse to wear a cloth face covering may be refused service and asked to leave.

Notification Requirements

  • A sign notifying customers to use hand sanitizer and to wear a face covering when not eating or drinking is also posted at all entrances.
  • Online outlets of the establishment (website, social media, etc.) provide clear information about facility hours, required use of face coverings, policies in regard to preordering, reservations, prepayment, pickup and/or delivery and other relevant issues.

 

 

[06/26/20 UPDATE: Not so fast Bay Area!  Given the current conditions due to coronavirus, Hayward’s and San Carlos’ city councils voted to delay the local minimum wage increase, which was previously scheduled for July 1, 2020.  Now, the increase in the cities’ minimum wage will align with that of the state, at least with respect to timing.  That is, effective January 1, 2020, Hayward’s minimum wage will increase to $15 for large employers (26 or more employees) and $14 for small employers (25 or less employees).  Similarly, San Carlo’s minimum wage will increase to $15, plus the annual change in Consumer Price Index, for a maximum of $15.53 per hour.  Employers doing business in these two cities will now have some breathing room, at least with respect to minimum wage compliance.]

As employers continue to assess, incorporate and comply with the recently enacted state and local requirements due to COVID-19, it is easy to lose track of the basic wage and hour requirements. And, as more and more businesses continue to reopen, it is imperative to ensure compliance with both state and local minimum wage requirements. This guide is designed to assist employers in complying with state and local/city minimum wage requirements.

 State Minimum Wage

California has a two-tier minimum wage requirement, depending on the employer’s size.  Currently, large employers–those with 26 or more employees–are required to pay a minimum wage of $13 per hour.  Small employers–those with 25 or less employees–must pay their employees a minimum wage of $12 per hour.

Effective January 1, 2021, California minimum wage rates will increase from $12 to $13 per hour and $13 to $14 per hour for small and large employers, respectively.

 Local Minimum Wages

Most importantly, employers must pay close attention to their local jurisdiction(s) (e.g., city) minimum wage requirements.  Various cities have enacted minimum wage ordinances setting a higher rate vis-à-vis the state.  Although the following is not an exhaustive list, it includes those cities where minimum wage is scheduled to increase effective July 1, 2020.

If your company is doing business in any of the cities below, ensure that wages are being paid accordingly.

City

 Applicable Minimum Wage

(Per Hour)

Other City-Specific Requirements
Alameda  

Current Minimum Wage: $13.50

Effective 07/01/20: $15

 

  

None
Berkeley Current Minimum Wage: $15.59

Effective 07/01/20: $16.07

 Defining Employee: The Berkeley City Ordinance defines “employee” as any person who works at least 2 hours per week for an employer within the city.

Recordkeeping: The City requires employers to retain payroll records for a period of 4 years, as opposed to the State requirement of 3 years.

 
Emeryville Current Minimum Wage: $16.30

Effective 07/01/20: $16.84

  

None

 

 
Fremont Large Employers (26 or more employees)

Current Minimum Wage: $13.50

Effective 07/01/20: $15

Small Employers (25 or less employees)

Current Minimum Wage: $12

Effective 07/01/20: $13.50

 

 Recordkeeping: The City requires employers to retain payroll records for a period of 4 years, as opposed to the State requirement of 3 years.
Los Angeles Large Employers (26 or more employees)

Current Minimum Wage: $14.25

Effective 07/01/20: $15

 

Small Employers (25 or less employees)

Current Minimum Wage: $13.25

Effective 07/01/20: $14.25

 

 Los Angeles City Living Wage Ordinance: The City’s Living Wage Ordinance requires City Contractors (employers who have a service contract with the City) to pay specific wage rates, which depend on whether the employer provides health benefits to its employees.  City Contractors are also required to provide employees with time off as required by the Living Wage Ordinance.

Citywide Hotel Worker Minimum Wage Ordinance: The City of Los Angeles requires hotel employers (those with 150 or more guest rooms) to (1) pay their employees a specific minimum wage; (2) provide 96 hours of paid time off per year; and, (3) at least 80 additional hours of uncompensated time off per year.

Paid Sick Leave: Employers must comply with the City’s paid sick leave requirements, which provide greater benefits than the State’s paid sick leave.
Malibu Large Employers (26 or more employees)

Current Minimum Wage: $14.25

Effective 07/01/20: $15

 

Small Employers (25 or less employees)

Current Minimum Wage: $13.25

Effective 07/01/20: $14.25

 

None
Novato Very Large Employers (100 or more employees)

Current Minimum Wage: $13

Effective 07/01/20: $15

 

Large Employers (between 26 and 99 employees)

Current Minimum Wage: $13

Effective 07/01/20: $14

 

Small Employers (25 or less employees)

Current Minimum Wage: $12

Effective 07/01/20: $13

 

None
Pasadena Large Employers (26 or more employees)

Current Minimum Wage: $14.25

Effective 07/01/20: $15

 

Small Employers (25 or less employees)

Current Minimum Wage: $13.25

Effective 07/01/20: $14.25

 

None
San Francisco Current Minimum Wage: $15.59

Effective 07/01/20: $16.07

 A small number of Government Supported Employees are subject to a minimum wage of $13.79.  That rate will increase to $14.22 on 07/01/20.
San Leandro Current Minimum Wage: $14

Effective 07/01/20: $15

None
Santa Monica Large Employers (26 or more employees)

Current Minimum Wage: $14.25

Effective 07/01/20: $15

 

Small Employers (25 or less employees)

Current Minimum Wage: $13.25

Effective 07/01/20: $14.25

 Hotel Workers: Santa Monica hotel workers are subject to a specific hourly rate of $16.63.  This rate will increase on 07/01/20.

Paid Sick Leave: The City requires employers to provide 40 hours (small employers) or 72 hours (larger employers) of paid sick leave.

Understandably, minimum wage requirements are not at the top of the list in employers’ agendas.  Nonetheless, all companies must continue to comply with state and local requirements, and ensure that all wages are being paid as mandated by law.

This Friday’s Five focuses on recent updates from my firm’s webinars discussing issues facing California employers during the reopening process:

1. Paycheck Protection Program Flexibility Act of 2020 signed by President Trump on June 5, 2020

The Paycheck Protection Program Flexibility Act of 2020 was signed by President Trump this morning, June 5, 2020. We provide an overview of this new bill and what it means for employers:

 

2. County-Specific Guidelines For Reopening: Los Angeles County

 

3. Los Angeles County Moves Forward With Reopening For Businesses, Including Dine-in Eating

 

4. COVID-19 Employment Litigation Risks – Potential Litigation

 

5. Which Employees are Entitled to COVID-19 Related Accommodations?