On January 25, 2022, California Governor Gavin Newsom, Senate President pro Tempore Toni G. Atkins, and Assembly Speaker Anthony Rendon announced a framework for an agreement to reactivate California’s COVID-19 paid supplemental sick leave through September 30, 2022.  Although there is no official timeline as to when the official agreement will be effectuated, a few details about the tentative new law have been shared.  First, the paid sick leave will be in effect through September 30, 2022.  Second, the law would apply to businesses with 26 or more employees.  Third, the agreement includes a proposal to restore business tax credits to offset the employer’s paid sick leave expenses. Fourth, employees would be entitled to the paid leave when having to take care of themself or a family-member with Covid-19.  Fifth, full-time employees will be entitled up to 80 hours of paid-time off while part-time workers would be eligible for paid leave equal to the number of hours they typically work in a week. Lastly, under the deal, the COVID-19 sick leave would be retroactive and cover COVID-related absences since Jan. 1, 2022. Polsinelli will of course continue to update clients on future developments with regard to this legislation.

On July 26, 2021, California Governor Gavin Newsom announced that California state workers, workers in health care, and workers in high-risk congregate setting will be required to provide proof of Covid-19 vaccination or undergo weekly testing and wear appropriate PPE.  The publication issued by the Governor’s office, which is not considered a “mandate” (yet) has been published as a “measure” to encourage State Employees and Health Care workers to get vaccinated.  The measure applies to public and private facilities. The new directive will apply to three large groups of employees. First, the measure will apply to California state employees. The new policy for state workers will take effect August 2. The measure provides that testing will be “phased in over the next few weeks.” Second, the measure will apply to employees working at high-risk congregate settings. By way of example (but not limitation) the measure identifies adult and senior residential facilities, homeless shelters, and jails as “high-risk congregate settings.” Employees working at these locations will be subject to the measure beginning August 9. Third, the measure will apply to “health care workers.” Of note, the publication from the Governor separately references “health care workers” and employees at “health care facilities.”  This suggests that health care workers who work outside of health care facilities would be subject to the measure. Unfortunately, Governor Newsom’s directive does not define the term “health care workers.” In previous orders, California’s Public Health Office designated the Health Care and Public Health Sector as a “large, diverse, and open [sector], spanning both the public and private sectors.” (https://covid19.ca.gov/essential-workforce/). In its definition of “health care providers” it included the following:   physicians, dentists, psychologists, mid-level practitioners, nurses, assistants, and aids; infection control and quality assurance personnel; pharmacists; physical, respiratory, speech and occupational therapists and assistants; social workers and providers serving individuals with disabilities including developmental disabilities; optometrists; speech pathologists; chiropractors; diagnostic and therapeutic technicians; and radiology technologists. (https://covid19.ca.gov/essential-workforce/ - (1) Health Care/Public Health – Essential Workforce, Paragraph 1.)  This group of professionals will likely be considered “health care workers” for purpose of the measure.  Additionally, all employees working at health care facilities will likely be subject to the measure as well. California’s Public Health Office also includes within its Health Care and Public Health sector employees working in emergency medical services, inpatient and outpatient care workers, home care workers, and residential and community-based providers. (https://covid19.ca.gov/essential-workforce/ - (1) Health Care/Public Health – Essential Workforce, Paragraph 2.) Of note, while these employees are considered part of the Health Care and Public Health sector, they are not listed under the heading for “health care providers.”  As a result, it is unclear, at this time, whether this latter sect of employees, that do not work at health care facilities, as well as other type of employees listed within the Health Care and Public Health sector, will be considered “health care workers” for purpose of the measure. Employers of health care workers and congregate facilities will be required to follow the measure effective August 9.  Additionally, health care facilities will have until August 23 to come into full compliance. For a full copy of Governor’s Newsom’s statement please click here . Polsinelli attorneys will continue to provide updates, should and when further guidance is published.

On February 25, 2021, in In Donohue v. AMN Services, LLC (2021) San Diego Superior Court, Case No. 37-2014-00012605-CU-OE-CTL, the California Supreme Court weighed in on two important issues pertaining to meal periods.  First, the Court held that California employers cannot round time punches for meal periods (although it is arguably permissible for work start and stop times).  Second, the Court held that employee time records showing non-compliant meal periods raise a rebuttable presumption of meal period violations and are sufficient to defeat a defendant’s dispositive motion for summary judgment. The Court emphasized that California’s meal period requirements are designed to prevent even minor infringements on employees’ meal periods and that rounding employees’ meal period time punches for even a de minimus amount violates state law. In Donohue, the defendant-employer, a healthcare services and staffing company, used a timekeeping system that rounded employees’ time punches for meal periods to the nearest 10-minute increment.  For example, if an employee punched out for lunch at 11:03 a.m. (rounded back to 11:00 a.m.) and punched back in at 11:24 a.m. (rounded forward to 11:30 a.m.), the system recorded a 30-minute meal period (even though only 21 minutes had actually elapsed).  The Court found that this rounding policy resulted in many employees not taking their full 30-minute meal breaks. The Court also noted that employees were paid a premium payment only if the employee proactively indicated that their meal period was missed, short, or late.  As a result, the Court found that there was sufficient evidence to suggest that employees worked over five hours before taking their meal break in violation of California Labor Code § 512 and Industrial Welfare Commission Wage Order No. 4-2001.  The case now heads back down to the Court of Appeals where the parties will submit further briefing on the plaintiffs’ meal period claims. Additionally, in reversing the defendant’s motion for summary judgment win, the Court ruled that records that demonstrate a non-compliant meal period raise a rebuttable presumption of labor code violations, which, the Court clarified, can be overcome by presenting evidence that either (1) the employees were compensated for noncompliant meals or (2) the employees were provided compliant, 30-minute, duty-free meal periods during which time the employee voluntarily chose to work. The Donohue decision serves as helpful guidance on two fronts.  First, it should be used as a warning for employers who use rounding policies for recording meal periods.  Employers who apply time rounding policies in the meal period context likely need to suspend these practices.  Moreover, based on the court’s guidance, employers that utilize general rounding practices should be wary of the potential problems that rounding policies may cause.  Second, employers should utilize paper or electronic acknowledgement forms from employees that confirm that employees are taking their meal breaks and rest breaks on a daily basis or, to the extent they are not, that this is documented as either a voluntary decision by the employee, or if it is not voluntary, that the employee is paid their statutory premium payment. Polsinelli attorneys will continue to monitor developments in this area and remain prepared to assist with any questions regarding timekeeping policies or other employment law issues.

Among the 2020 ballot initiatives, California voters had the opportunity to weigh in on a 24-year ban on affirmative action in California.   In 1996, California voters approved the California Civil Rights Initiative (Proposition 209) which amended the California Constitution to prohibit the consideration of race, sex, color, ethnicity or national origin in public education, employment and contracting.  California became the first state to enact such a measure.   Proposition 16, which appeared on the 2020 ballot, would have repealed Proposition 209, meaning that public institutions could have considered race, gender or ethnicity as a positive element in admission, hiring, and contract decisions.   Californians voted against this measure, maintaining the current ban on affirmative action in the state. While Proposition 16 failed, California employers should bear in mind that the ballot measure applied to public employers and concerned the ability to use race, sex, color, ethnicity, or national origin as a positive factor.  The measure, whether or not it passed, did not alter the numerous safeguards in place, at both the state and federal level that protect against discrimination.  At the federal level, Title VII of the Civil Rights Act of 1964 specifically prohibits employers from discriminating on the basis of race, color, religion, sex, and national origin.  California has adopted even broader protections for employees, earning its title as the most employee-friendly state in the nation.  The California Constitution and state statutes offer a broad range of protections against arbitrary discrimination based on protected characteristics.  Arguably the strongest protection against employment discrimination comes from the California Fair Employment and Housing Act (“FEHA”), which applies to both private and public employers.  The FEHA prohibits employers from discriminating against job applicants and employees because of a protected category, or retaliating against them because they have asserted their rights under the law.  Additionally, for larger employers (50 or more employees) with qualifying federal contracts or subcontracts, there are additional affirmative action requirements under the Rehabilitation Act of 1973, Executive Order 11246, and the Vietnam Era Veterans’ Readjustment Assistant Act (“VEVRA”). Despite the defeat of Proposition 16, California remains an employee-friendly state with a host of broad protections and nuances that employers must carefully consider in making business decisions.

In the last two weeks, the California Legislature has enacted numerous bills relating to employer obligations in light of COVID-19.  Five of these bills have already been signed into law by Governor Newsom.  The remainder may still be signed by Governor Newsom on or before September 30, 2020, which will trigger either an immediate or a January 1st effective date.  Below is a summary of the legislation signed into law by Governor Newsom. AB 2257 - AB 2257 modifies the statutory scheme of AB5. AB5 was itself enacted in 2019 and codified the strict “ABC Test” for classifying workers as independent contractors. AB 2257 adds over fifty categories of workers that are exempt from the “ABC Test” and instead are subject to the more moderate “Borello multi-factor test,” for purpose of determining independent contractor status.  For a detailed discussion regarding AB 2257, please click here. AB 1867 - AB 1867 touches on three areas of employment.  First, the bill provides 80 hours of paid supplemental sick leave for California employees of employers with 500 or more employees nationwide and for health care providers or emergency responders that have been exempted from paid sick leave under the federal Family First Coronavirus Response Act.  Second, the bill provides for hand-washing requirements and further leave entitlements for food sector employees. Third, the bill requires employers to update their wage statements or other written notice regarding the amount of supplemental paid sick leave.  For a detailed discussion regarding AB 1867, please click here. SB 1159 - Creates a disputable presumption, under specific circumstances, for an employee who suffers illness or death resulting from COVID-19 on or after July 6, 2020 through January 1, 2023, that the employee contracted COVID-19 in the course and scope of employment.  The disputable presumption is raised under the following circumstances: (1) the employee tests positive for COVID-19 within 14 days after a day that the employee performed labor or services at the employee’s place of employment; (2) the day on which the employee performed labor or services at the employee’s place of employment at the employer’s direction was on or after July 6, 2020; and (3) the employee’s positive test occurred during a period of an outbreak at the employee’s specific place of employment. A more detailed discussion regarding SB 1159 is forthcoming on Polsinelli at Work. AB 685 – Requires employers to report an outbreak of COVID-19 to local public health officials. The new law also requires employers to report known cases to employees who may have been exposed to COVID-19 within one business day. Further, the new law expands Cal/OSHA’s authority to issue stop work orders for workplaces that pose a risk of an “imminent hazard” relating to COVID-19, i.e., hazards threatening immediate and serious physical harm. A more detailed discussion regarding AB 685 is forthcoming on Polsinelli at Work. SB 1383 - Expands the obligation to provide up to 12 workweeks of unpaid job-protected leave during any 12-month period for certain covered reasons to small employees (with as little as 5 employees) not covered before. Further, previously, leave for purposes of caring for a family member was available only if the family member was the employee’s child, a parent, spouse, or domestic partner.  SB 1383 permits eligible employees to care for grandparents, grandchildren, and siblings, unlike under the prior CFRA statute.  However, employees still need to meet eligibility requirements, predominantly - 12 months of service and 1,250 hours worked in the previous 12-month period, to qualify for family and medical leave.  A more detailed discussion regarding SB 1383 is forthcoming on Polsinelli at Work. These recent changes in California law overlay with the U.S. Department of Labor’s recently published regulatory guidance on September 14, 2020, relating to paid leave entitlements under the federal Family First Coronavirus Response Act (FFCRA), which, among other things, significantly narrows the definition of who is a “health care provider” that may be excluded from the FFCRA’s paid leave entitlement.  For a detailed discussion regarding the DOL’s new guidance, please click here.

As the nation battles the COVID-19 pandemic, California has been simultaneously grappling with one of the hottest employment law issue: the classification of workers as employees or independent contractors.  On September 4, 2020, California Governor Newsom signed into law AB 2257, a bill designed to clarify issues that arose from AB 5, which became effective January 1, 2020.  In light of the changes outlined below, companies should review their policies and agreements with independent contractors to ensure proper classification. AB 5 codified the California Supreme Court holding in Dynamex Operations West, Inc. v. Superior Court and adopted the “ABC” test to determine whether independent contractors should be treated as employees with various exceptions.  Under the “ABC” test, workers are presumed to be employees unless they satisfy three conditions: The worker is free from the employer’s control and direction in connection with the work performed, both under the contract and in fact; The work performed is outside the usual course of the employer’s business; and The worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed. AB 5 included an extensive list of exemptions for specific occupations and business relationships, resulting in confusion for many employers.  While AB 5 initially seemed to target the gig economy, its broad language has affected industries statewide.  In the nine months since AB 5 became effective, the bill has generated significant controversy as California businesses were forced to quickly develop strategies whilst combatting the litany of misclassification civil actions that emerged from AB 5.  Simultaneously, the Legislature immediately introduced dozens of stand-alone bills to amend the new law.  AB 2257 is the first of these post-AB 5 bills to become effective. AB 2257: The Latest Changes Occupation Exemptions: Under AB 5, certain occupations were excluded from the ABC test, including doctors, lawyers, dentists, licensed insurance agents, accountants, architects and engineers, private investigators, real estate agents, and hairstylists.  AB 2257 expands this list to include translators, appraisers, home inspectors and registered foresters.  AB 2257 also strikes the 35-assignments per year cap from AB 5, allowing freelance writers, translators, photographers, videographers and illustrators to work as independent contractors without regard to the number of assignments taken from one client. Entertainment Industry: AB 2257 also creates additional exemptions for the entertainment industry, with a particular focus on musicians and performers.  Recording artists, songwriters, lyricists, composers, proofers, managers of recording artists, record producers and directors, musical engineers, musicians, vocalists, music album photographers, independent radio promoters, and certain publicists are included in the exemptions.  Musicians who engage in a single-engagement live performance event are also exempt from the ABC test.  However, musicians who perform as a symphony orchestra, in a musical theater production, or at a theme or amusement park are not exempt from the ABC test.  Musicians who headline at a venue with more than 1,500 attendees or those who perform at a festival that sells more than 18,000 tickets per day are also not exempt from the ABC test.  For comedians, improvisers, magicians, and storytellers, AB 2257 does provide an exemption, but imposes the following conditions: (i) the individual performer performs original work they created and retains the intellectual property rights for such work; (ii) he or she is free from the hirer’s control; and (iii) the individual performer sets their own terms of work and negotiates rates. Referral Agencies: AB 2257 also makes significant expansions to the types of services that can qualify for the referral agency exemption.  AB 2257 adds to the list: consulting, youth sports coaching, caddying, wedding and event planning, and interpreting services.  AB 2257 clarifies that this exemption is not limited to those identified, leaving room for additional types of services to be added to this already expansive list.  AB 2257 does, however, make certain that the following services are not included: high-hazard industry services, janitorial, delivery, courier, transportation, trucking, agricultural labor, retail, logging, in-home care, or construction services other than minor home repair.  As a result, ride-share services, such as Uber or Lyft continue to be expressly excluded from the laundry list of exemptions. Business-to-Business Contracting Relationships: Importantly, AB 2257 expands the “business-to-business exemption” to apply to sole proprietors.  Previously, under AB 5, this exemption was only applicable to business entities that were incorporated.  AB 2257 provides a further exemption for sole proprietors under the “single-engagement exemption,” which provides the ABC Test will not apply for a single-engagement event, provided certain conditions are met.  AB 2257 also broadens the business-to-business exemption to include situations where a public agency or quasi-public corporation retains a contractor.  Another important amendment in AB 2257 is it no longer requires that a business service provider “actually contracts” with other businesses “without restriction form the hiring entity.”  Instead, AB 2257 merely requires that the business service provider can contract with other entities and maintain a clientele.  This amendment allows greater flexibility for entities which, for example, not have actually contracted with other businesses, so long as they have the opportunity to do so.  On that same front, AB 2257 also relaxes restrictions to allow business service providers to provide services directly to the customers of a contracting business. AB 2257 contains several additional significant amendments and nuances that California employers must carefully examine when navigating the ever-changing landscape of independent contractor law.  While further legislation and additional litigation is on the horizon, AB 2257 was made effective when signed and remains the current law in California.  Polsinelli attorneys are closely examining recent developments and remain prepared to assist you in developing business policies to comply with these measures.

On September 9, 2020, California Governor Newsom signed AB 1867. The new law provides for “gap” paid sick leave coverage for California employees who are otherwise exempt from emergency paid sick leave coverage provided under the federal Families First Coronavirus Response Act (“FFCRA”). In addition to providing paid leave, the law requires employers to comply with urgent-notice and posting requirements. General Requirement The new law is intended to act as “gap” paid leave for California employees who are employed by employers that are exempt under the federal Family First Response Care Act. The new California law applies to (1) employers with 500 or more employees; or (2) health care providers or emergency responders (working for a public or private entity of any size). The law provides for up to 80 hours of COVID-19 Supplemental Paid Sick Leave (“CSPSL”) for covered workers. Covered Employers The Act applies to private employers with 500 or more employees in the United States. For purposes of calculating the number of employees, “employees” includes: (i) all employees currently working, (ii) employees on leaves of any kind, (iii) employees of temporary placement agencies who are jointly employed under the Fair Labor Standards Act, and (iv) day laborers. Alternatively, the obligation to provide CSPSL applies to public and private entities of any size with respect to any health care providers or emergency responders which the entity employs, which have been excluded from sick leave under the FFCRA. Qualifying Reasons for Paid Sick Time A covered employer must provide an employee supplemental paid sick leave under the Act for any of the following reasons: The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19; The employee is advised by a healthcare provider to self-quarantine or self-isolate due to concerns related to COVID-19; or The employee is prohibited from working by the employer due to health concerns related to the potential transmission of COVID-19. Note that unlike the federal leave requirement, this new law does not provide for paid leave for reasons related to school closures. Additionally, the law does not expressly provide for paid leave to take care of a family member who may have contacted Covid-19. However, the law obligates an employer to provide CSPSL if an employer has a policy or practice of requiring that an employee self-isolate from the employer’s physical workspace due to risk of potential transmission after close contact with an individual diagnosed with Covid-19. The law is silent with respect to employees who are required to self-isolate but are capable of telecommuting. This analysis will have to be undertaken on a case-by-case basis. Covered Full-Time Employees An employee qualifies for the full 80 hours of CSPSL if the employee satisfies either of the following criteria: The employer considers the employee to work “full time”; or The employee worked or was scheduled to work, on average, at least 40 hours per week for the employer in the two weeks preceding the date the employee took CSPSL. Covered Part-Time Employees For part-time employees the minimum amount of CSPSL is calculated as follows: If the employee has a normal weekly schedule, the total number of hours the employee is usually scheduled to work for the employer over two weeks; If the employee works a variable number of hours, 14 times the average number of hours the employee worked each day in the six months prior to taking COVID-19 supplemental paid sick leave or, if the employee has been employed for less than six months, over the entire period the employee has worked for the employer; or If the employee works a variable number of hours and has worked for the employer over a period of 14 days or fewer, the total number of hours the employee has worked. Supplemental to Regular Paid Sick Leave Already Provided/ Retroactive Designation CSPSL must be provided in addition to any paid sick leave the employer already provides to employees. An employer may not require an employee to first use other paid leave provided by the employer. However, if an employer previously provided employees with leave for CSPSL reasons described above (separate or in addition to regular paid-sick leave), and which compensated the employee at an amount equal to or greater than what CSPSL requires, the employer may count the hours of the other paid benefit or leave towards the total number of hours CSPSL. If an employer provided non-compensated COVID-19 related leave separate or in addition to regular paid-sick leave), the employer will have the option of retroactively compensating the covered worker to satisfy the Act’s compensation requirements. Upon compensation, an employer will be able to credit these hours towards CSPSL requirements. Compensation for Paid Sick Time Employees using COVID-19 supplemental paid sick leave must be compensated at their regular rate of pay for their last pay period. Notice Requirements The Labor Commissioner has posted the following model notices that an employer must display that explains the nature of CSPSL. Food Sector Workers - https://www.dir.ca.gov/dlse/COVID-19-Food-Sector-Workers-poster.pdf Non-Food Sector Workers - https://www.dir.ca.gov/dlse/COVID-19-Non-Food-Sector-Employees-poster.pdf The Bill requires that the notice must be posted at workplaces before September 19, 2020.  Therefore, applicable companies that have not done so yet must do so as soon as practicable. Alternatively, the bill provides that if an employer’s employees do not frequent the workplace, then it may disseminate the notice through electronic means, such as by email. Employers must also provide notice in a wage statement (or a separate writing provided on pay day) of an employee’s available CSPSL each pay period. That requirement takes effect in the first pay period following the date of enactment. Expiration of the Law The requirement to provide COVID-19 supplemental paid sick leave expires on December 31, 2020, or upon the expiration of any federal extension of the Emergency Paid Sick Leave Act (whichever is later). Food-Sector Employers In April of 2020, Governor Newsom signed Executive Order (EO) N-51-20, which provided CSPSL for food sector workers. In large part, AB 1867 codifies the executive order’s language. However, AB 1867 differentiates from the prior Executive Order in a couple of ways. First, AB 1867 provides the aforementioned expiration period whereas the executive order was to be applicable only during the pendency of the statewide stay-at-home order. Additionally, AB 1867 clarified that that “food facilities” are defined as all entities codified under California Health and Safety Code section 113789. Additionally, AB 1867 codifies food-sector employer’s obligation to permit employees to wash their hands every 30 minutes. Polsinelli attorneys are closely examining recent developments and remain prepared to assist you in developing business policies to comply with these measures.

On July 8, 2020, the United States Supreme Court expanded the “ministerial exception” – a legal doctrine that exempts religious employers from certain discrimination laws in Our Lady of Guadalupe School v. Morrissey-Berru.  The decision broadened the reach of the exception, which was previously validated by the Court in 2002 in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC.  Given the broad reach of the recent decision, various religious institutions will now have a strong defense against discrimination claims brought by employees who perform faith-based functions. By way of background, in 2012, the U.S. Supreme Court held in Hosanna-Tabor that the First Amendment barred a court from entertaining an employment discrimination claim brought by a teacher against her religious school employer.  The Court held that the school’s First Amendment right protected religious institutions from state interference on matters of church government as well as those of faith and doctrine. Adopting the “ministerial exception,” the Supreme Court articulated factors for when the ministerial exception should apply. These factors included: whether the employer held the employee out as a minister with a formal religious title; whether the employee’s title reflected ministerial substance and training; whether the employee held herself out as a minister; and whether the employee’s job duties included “important religious functions.” In Morrissey-Berru, two elementary school teachers at Roman Catholic schools in the Archdiocese of Los Angeles filed claims of discrimination.  Agnes Morrissey-Berru sued her employer under the Age Discrimination in Employment Act of 1967 and Kristen Biel sued her employer under the Americans with Disabilities Act.  Both religious employers asserted the ministerial exception and prevailed on summary judgment at the district court level.  However, the Ninth Circuit reversed both decisions, reasoning that, the employers did not satisfy the Hosanna-Tabor factors.  The Ninth Circuit found that the religious entities could not invoke the ministerial exception against these teachers because the teachers did not maintain the title of “minister,” had limited religious training, and only sporadic experience in ministerial activities. On appeal, the Supreme Court held that the Ninth Circuit misapplied the Court’s Hosanna-Tabor ruling.  The Court explained that the previously promulgated four factors were not meant to impose a “rigid formula.”  The Court further held that in deciding whether the ministerial exception is to be applied, a court must “take all relevant circumstances into account and determine whether each particular position implicate(s) the fundamental purpose of the exception.” In finding that the two teachers fell within the ministerial exception, the Supreme Court looked at the teachers’ employment agreements and handbooks.  The respective records unambiguously showed that the teachers were expected to carry out the school’s mission of developing and promoting the Catholic faith. Further, the record showed that the religious employers imposed commitments regarding religious instruction, worship, and personal modeling of the faith and explained that their performance would be reviewed on those bases. Lastly, the Court looked at the fact that the teachers taught religion in the classroom and worshipped and prayed with the students.  Given these circumstances, the Court held that the employers were covered by the ministerial exception, and therefore, their discrimination claims were barred. The Morrissey-Berru decision provides religious organizations a valuable defense that may apply in employment claims alleging discrimination, harassment, or retaliation. Religious organizations should review and update their policies, employee handbooks, and employment offers in light of the ruling and work with counsel to understand the nuanced use of the defense. If you have any questions or need assistance related to the ministerial exception, contact your Polsinelli attorney.

On April 7, 2020, Mayor Eric Garcetti signed into law the ordinance recently passed by the Los Angeles City Council mandating that certain large employers offer up to 80 hours of “COVID-19 Supplemental Paid Sick Leave” to employees working within the City of Los Angeles, with some notable modifications to the original ordinance.  The new law, which is effective immediately, was passed in response to the COVID-19 pandemic and to supplement the recently passed Families First Coronavirus Response Act (“FFCRA”).  Here are answers to key questions regarding the new law (which have been updated to reflect Mayor Garcetti’s modifications): Which employers must offer COVID-19 Supplemental Paid Sick Leave? Employers with (i) 500 or more employees within the City of Los Angeles; or (2) 2,000 or more employees nationally.  Some limited exceptions are noted below. Which employees are eligible for the COVID-19 Supplemental Paid Sick Leave? For an employee to be eligible, they: Must work within the geographic boundaries of the City of Los Angeles; Must have worked for the same employer from February 3, 2020 to March 4, 2020; Must experience one of the following qualifying events: A public health official or health provider requires or recommends the employee isolate or self-quarantine to prevent the spread of COVID-19; or The employee is at elevated risk because they are least 65 years old or has an underlying health condition such as heart disease, asthma, lung disease, diabetes, kidney disease, or weakened immune system; or The employee needs to care for a family member who is not sick but who public health officials or health providers have required or recommended  isolate or self-quarantine; or The employee needs to care for a family member because their senior care provider, school, or childcare provider is closed.  This is only applicable to an employee who is unable to secure a “reasonable alternative caregiver.” Employers may not require a doctor’s note for the employee to utilize the supplemental leave, and must grant upon the oral or written request of an eligible employee. How much sick leave must be provided to eligible employees under the new law? Full-time employees can take up to 80 hours of paid sick leave, which shall be calculated based on an employee’s average two week pay over the period of February 3, 2020 through March 4, 2020; Part-time employees can take to up to the average number of hours they worked in a two-week span over the period of February 3, 2020 to March 4, 2020; The total amount paid per day is capped at $511 and no more than $5,110 in the aggregate; If an employee is jointly employed by two or more employers, they are only entitled to the aggregate amount of leave specified for employees of one employer. Are there any exemptions? Yes, the following individuals are exempt: Emergency Personnel, including all first responders, gang and crisis intervention workers, public health workers, emergency management personnel, emergency dispatchers, law enforcement personnel, and related contractors and others working for emergency services providers; Health care providers, including those defined by the U.S. Secretary of Labor to be capable of providing health care services under the FMLA and those working at a licensed health care facility; Employees that provide global parcel delivery services; and Employees of government agencies working within the course and scope of their public service employment. Additionally, the following employers are exempt from the new law: Employers who have a paid leave or paid time off policy that provides a minimum of 160 hours of paid leave annually; New businesses that started in the City or relocated from outside the City on or after September 4, 2019 through March 4, 2020, and were not in business in the City in the 2018 tax year.  Certain construction businesses and film producers are excluded from this exemption; and Any business or organization that was closed or not operating for a period of 14 or more days due to a city official’s emergency order because of COVID-19 or provided at least 14 days of leave. A collective bargaining agreement in place on the effective date of the new law may also supersede the new mandate if it contains COVID-19 related sick leave provisions.  When the collective bargaining agreement expires or is open for renegotiation, COVID-19 Supplemental Paid Sick Leave can also be expressly waived if explicitly set forth in the agreement in clear and unambiguous terms. When is the program effective? The law is effective as of April 7, 2020 and will be effective until two calendar weeks after the expiration of the COVID-19 local emergency period. How does this program interact with the newly passed FFCRA? It does not.  This ordinance only impacts employers with greater than 500 workers in aggregate.  The FFCRA only applies to employers with fewer than 500 workers in aggregate.  Regardless, the two leaves would run concurrently. Is there any offset if our Company recently offered employees paid time off or other paid leave for these same reasons? An employer’s obligation to provide COVID-19 Supplemental Paid Sick Leave is reduced for every hour the employer allowed the employee to take leave, not including previously accrued hours, for any of the reasons listed above on or after March 4, 2020. COVID-19 Supplemental Paid Sick Leave is in addition to California or Los Angeles-mandated paid sick leave. What happens if an employer does not comply with the new law? Under the new ordinance, an employer must not retaliate against an employee for exercising their rights under the new law.  Any employee claiming a violation under this ordinance may file an action in the Superior Court of the State of California and may be awarded reinstatement, back pay and COVID-19 Supplemental Paid Sick Leave unlawfully withheld, and other equitable relief.  A court may also award reasonable attorneys’ fees to a prevailing employee. For questions relating to this new Los Angeles City law, please do not hesitate to reach out to a Polsinelli attorney.

On March 12, 2020, the California Supreme Court broadened the scope of who can bring a representative action claiming penalties under the 2004 Private Attorneys General Act (PAGA).  (Kim v. Reins International California, Inc.) By way of background, in a PAGA action the named plaintiff must be an “aggrieved” employee or former employee who alleges that the defendant committed one or more California Labor Code violations against him or her.  This permits the employee to bring a “representative” PAGA claim against the defendant on behalf of other “aggrieved” employees for other alleged Labor Code violations.   In its ruling, the Supreme Court held that an employee who settles his or her own individual claims against their employer may still bring a PAGA action on behalf of other “aggrieved” employees. Until recently, an employee who settled their individual claim(s) against the employer could no longer maintain a PAGA action on behalf of other “aggrieved” employees.  The courts reasoned, prior to the instant decision, that because the plaintiff was made whole he or she was no longer “aggrieved.”  With the Kim decision, however, the Supreme Court stated that “[t]he statutory language reflects that the Legislature did not intend to link PAGA standing to the maintenance of individual claims… .”  Rather, the Court ruled that independent of any individual settlement an employee has PAGA standing if “…one or more of the alleged violations was committed against him [or her]… .” The Court’s decision that an employee’s individual claims are no longer linked to PAGA standing will affect the strategies employers utilize in litigating PAGA actions.  For example, companies with arbitration agreements may be unable, and may not want to, arbitrate named plaintiffs’ individual claims.   This is because even if the employer is successful in its arbitration against an employee on his or her individual claims, the employee may still bring a separate PAGA action.  Moreover, employers will need to consider PAGA exposure when settling wage and hour claims with employees on an individual basis.  The Labor and Employment Department of Polsinelli is of course ready to provide you further guidance on this ruling and all of your California and Federal labor and employment questions.