Category Archives: Newsletters

by Sonya Goodwin

As 2022 winds down, every California employer should start preparing for the new and revised employment laws that go into effect on January 1, 2023. Below is a summary of just a few of the highlights. Now is a great time to revise your employee handbooks if you haven’t done so already. Please reach out if you have any questions about how these new laws might affect your business, or if you need to revise your handbook.

Extension of California Family Rights Act

The California Family Rights Act (“CFRA”) has been extended to allow an employee to take CFRA leave for a “designated person,” in addition to the previously enumerated reasons. “Designated person” is defined as “any individual related by blood or whose association with the employee is equivalent of a family relationship” and includes domestic partners. Employers may limit an employee to one designated person per 12-month period. The CFRA applies to employers with five or more employees.

Extension of California Paid Sick Leave

California’s Paid Sick Leave Law (“PSL”) has a similar extension to allow an employee to take paid sick leave for a “designated person.” The definition of “designated person” under the PSL is even broader than under the CFRA, and is defined as “a person identified by the employee at the time the employee requests paid sick days.” Employers can also limit an employee to one designated person per 12-month period under the PSL.  

Bereavement Leave Law

Effective January 1, 2023, employers with five or more employees will be required to provide up to five days of unpaid bereavement leave to employees who have worked for the employer for at least 30 days. Bereavement leave is permitted for the death of a qualifying family member, which includes a spouse, child, parent, sibling, grandparent, grandchild, domestic partner, or parent-in-law as defined in the CFRA. The five days do not need to be taken consecutively, but must be completed within three months of the family member’s death. Employers may require documentation proving the death of the family member, and must maintain confidentiality related to the bereavement leave.  Employees may use accrued but unused vacation time for any portion of the bereavement leave that is unpaid.  

Extension of the FEHA to Protect Reproductive Health Decision-Making and Cannabis Users

Effective January 1, 2023, the Fair Employment and Housing Act (“FEHA”) will add an employee’s reproductive health decision-making as another protected category under the Act, which means employers cannot discriminate, harass, or retaliate against an employee based on their reproductive health decision-making. Reproductive health decision-making is defined as “a decision to use or access a particular drug, device, product, or medical service for reproductive health.”

Effective January 1, 2024, the FEHA will make it illegal to discriminate against an employee on the basis of their use of cannabis off the job and away from the workplace. This also means that employers cannot take adverse actions against employees for nonpsychoactive cannabis metabolites found in an employee’s body through a drug test. This new law will not prevent an employer from taking adverse action against an employee who is found to be in possession of, using, or impaired by cannabis while working. The law will not apply to employees in the building and construction trades and also does not apply to applicants or employees who are hired for positions requiring federal background investigations.

Pay Data Transparency and Reporting Requirements

Effective January 1, 2023, employers with 15 or more employees will be required to put the pay scale range in all job postings (whether posted by the employer directly or through a recruiter). Additionally, all employers will be required to make pay scale information for an employee’s current position available to employees upon request. 

Additionally, employers with 100 or more employees will be required to provide a detailed pay data report to California’s Civil Rights Department every May. 

Employers who fail to comply with any of these laws will be subject to penalties. 

Protections for Employees During “Emergency Conditions”

Effective January 1, 2023, employees must be permitted to leave work or refuse to go to work during an “emergency condition,” which is defined as a disaster or extreme peril to the safety at the workplace caused by natural forces or a crime, or an evacuation order due to a natural disaster or crime at the workplace, an employee’s home, or their child’s school. The law explicitly excludes health pandemics from the definition of “emergency condition.” However, employees who are required by law to render aid or remain on the premises in the event of an emergency, employees of health care facilities who provide direct patient care, and employees of licensed residential care facilities are excluded from the protections afforded by this new law.

Reminder: Minimum Wage Increase!

Effectively January 1, 2023, the state minimum wage will increase to $15.50 per hour. This also means an increase to meet the salary basis test for exempt employees to $64,480. 

Local jurisdictions may have higher minimum wage requirements. You should always check to make sure you are in compliance with local minimum wage requirements for each jurisdiction in which you conduct business.

If you have any questions about the above laws, or need assistance with employment issues, contact Sonya Goodwin at sgoodwin@swattys.com.

by Gerald Sauer

Sauer & Wagner LLP is celebrating its 25^th anniversary. This milestone could not have been achieved without the devotion of our clients, colleagues, and friends. We thank each and every one of you for your support over the years!  

The firm was founded on Law Day back on May 1, 1997. Law Day was established under the Eisenhower Administration as a national day to celebrate the role of law in our society. Law Day is a time to reflect on how the legal process protects our liberty and impacts our daily lives. S&W is honored to have played a role in successfully applying the rule of law on behalf of our clients.

S&W remains committed to providing exceptional legal services for our clients. We look forward to many more years of service and success in the future.     

by Sonya Goodwin

Happy New Year! With the start of 2022 comes new and revised employment laws affecting California employers. Below is a summary of just a few of the highlights. As this is a non-exhaustive list, please reach out if you have any questions about how these new laws might affect your business.

Cal-OSHA’s Emergency Temporary Standards Revised.

The California Occupational Safety and Health Standards’ (Cal-OSHA) Emergency Temporary Standards (ETS) revised its COVID-19 rules, effective January 14, 2022 through April 14, 2022. Some of the revisions include:

• Both vaccinated and unvaccinated employees must stay home from work for 14 days if they come in “close contact” with someone who is infected with COVID-19, even if they test negative. However, if the California Department of Public Health provides for shorter quarantine or isolation rules, then employers can follow those shorter periods according to the revised ETS. 
• Employers must provide COVID-19 tests (at no cost to the employee) to all employees, regardless of vaccination status, if they are identified as having close contact with a COVID-19 case at the workplace.  
• Cloth face coverings must now pass a “light test,” which means that light cannot pass through the covering when held up to a light. 

Certain jurisdictions may have stricter requirements that should be followed. Check with your employment attorney to determine the correct COVID-19 protocols for your worksites.

Clarification to Notification, Benefits, and Disinfecting Requirements after COVID-19 Exposure (AB 654).

AB 654 provides clarification as to whom notification, benefits, and disinfecting information are to be given. The new law cleaned up the previous inconsistencies, and now states that notice regarding exposure, benefits, and disinfecting and safety must be given to all employees who were “on the premises at the same worksite as the qualifying individual within the infectious period.” The “infectious period” is determined by the California Department of Public Health.  

Expansion of the California Family Rights Act (AB 1033).

Last year, the California Family Rights Act (CFRA) was expanded to apply to all employers with 5 or more employees. This year, CFRA has expanded yet again, to include parent-in-law (including parent of a domestic partner) to the definition of family members for whom an employee can take CFRA leave. 

Additionally, CFRA’s pilot mediation program for employees of small employers (1-19 employees) was modified and streamlined under AB 1033. If an employee files a charge with the Department of Fair Employment and Housing (DFEH) for a violation of CFRA and requests an immediate right-to-sue letter, the DFEH must notify all parties of the requirement to mediate prior to filing a civil action, if a request to mediate is submitted by either party. If an employer does not receive notice of the mediation program as a result of the employee’s failure to contact the DFEH’s alternative dispute resolution division prior to filing a lawsuit, then the employer may request a stay of the court action or arbitration proceeding until mediation has occurred.  

Expansion to Prohibition of NDAs in Certain Employment Agreements (SB 331).

In 2019, California law prohibited provisions in settlement agreements and non-disclosure agreements (NDAs) that prevent the disclosure of factual information relating to civil or administrative complaints of sexual harassment, sexual assault, harassment or discrimination based on sex, and any retaliation related to such claims. SB 331 expands the prohibition to apply to any claims of workplace harassment or discrimination for any protected class (i.e. race, religion, national origin, disability, etc.). However, settlement agreements may still include a confidentiality clause as to the amount paid in a settlement.

Additionally, SB 331 requires that employees include in any agreements that could otherwise preclude employees from disclosing information about unlawful acts in the workplace (including non-disparagement agreements, separation agreements not involving resolution of civil actions or administrative charges, NDAs, or other agreements required in exchange for a bonus, raise, employment, or continued employment) a disclaimer that enables employees to disclose such information. Such agreements must specifically include the following language: “Nothing in this agreement prevents you from discussing or disclosing information about unlawful acts in the workplace, such as harassment or discrimination or any other conduct that you have reason to believe is unlawful.”

Additionally, in such an agreement that is a separation agreement (and not made to resolve filed civil actions or administrative charges), the agreement must now include a notice about employee’s rights to consult an attorney regarding the agreement and provide reasonable time (at least 5 business days) for an employee to consult with an attorney.  

Electronic Delivery Option of State-Required Posters (SB 657).

SB 657 adds Labor Code section 1207, which states that in any instance in which an employer must physically post information, the employer “may also distribute that information to employees by email with the document or documents attached.” This is in addition to and does not alter, the employer’s obligation to physically post the required posting. This was intended to relieve some of the technical issues of employees working remotely in the post-pandemic world.

Extended Time for Record Keeping Requirements (SB 807).

SB 807 extends the amount of time employers need to retain personnel records from 2 years to 4 years. If litigation has been filed, employers must retain the records until the applicable statute of limitations has run, or until the litigation has concluded, whichever is later. SB 807 also makes revisions to and creates tolling of statutes of limitations for certain claims under the Fair Employment and Housing Act.  

Reminder: Minimum Wage Increase!

Effective January 1, 2022, employers with 25 or fewer employees must increase the minimum hourly wage to $14.00 (increased from $13.00 per hour), while employers with 26 or more employees must pay a minimum wage of $15.00 per hour (increased from $14.00 per hour). This also means an increase to meet the requirements of the salary basis test for exempt employees – employers with 1-25 employees must pay $58,240 per year and employers with 26 or more employees must pay $62,400 per year.

Local jurisdictions may have higher minimum wage requirements.  

If you have any questions about the above laws, or need assistance with employment issues, contact Sonya Goodwin at sgoodwin@swattys.com.

by Sonya Goodwin

Last week, the California Supreme Court ruled in Ferra v. Loews Hollywood Hotel, LLC that California employers must pay meal period and rest break premiums at the same “regular rate” that applies to the payment of overtime. 

Under California law, when a non-exempt employee is not provided with a fully compliant 30-minute meal period or 10-minute rest break (i.e. it is missed, interrupted, late, or shortened), the employer must pay a one-hour premium for each non-compliant meal period or rest break. Since the California Court of Appeal and federal district courts have held that the meal period and rest break premiums should be calculated at the employee’s base hourly rate, the Ferra decision marks a distinct change in the law. 

So what does this mean for employers? 

Payment of the one-hour meal period and rest break premium must factor in all non-discretionary earnings such as bonuses, meals, lodging, etc. And to make the issue more complicated, the California Supreme Court held that its ruling applies retroactively. California employers should ensure that its meal period and rest break premium payment procedures are compliant as soon as possible. 

If you have any questions about whether your meal period and rest break policies are compliant, contact Sonya Goodwin at sgoodwin@swattys.com.

by Sonya Goodwin

As predicted, Cal/OSHA approved revisions to the COVID-19 Emergency Temporary Standards (“ETS”) on June 17, and Governor Newsom issued an Executive Order to make the amended ETS effective as soon as it is filed with the Secretary of State. A few of the changes are highlighted below:

• Mask Requirements:
  • Vaccinated employees do not have to wear face coverings except when required by the California Department of Public Health – examples include public transit, K-12 educational facilities, health care and long-term care settings, correctional and detention facilities, and homeless shelters. 
  • Unvaccinated employees must wear face coverings indoors or in vehicles. Employers must still provide the face coverings or cover the costs. Exceptions to wearing face coverings indoors include (1) when alone in a room or vehicle; (2) when eating and drinking, but only if physical distancing (6 feet apart) can be maintained and outside air has been maximized to the extent feasible; (3) when an accommodation is required; (4) when job duties make a face covering infeasible or create a hazard
  • Employees may wear a face covering even when not required to do so, and are protected from retaliation. 

• Vaccination Status:
  • Employers must document vaccination status for any employee not wearing a face covering indoors and the records must be kept confidential. The proposed revisions do not specify how an employer can ask or maintain vaccination status, but some acceptable options in Cal/OSHA’s FAQ include:
    • Employees can provide proof of vaccination and employer maintains a copy.
    • Employees can provide proof of vaccination and employer maintains a record of who provides proof, but not a copy of the vaccine record itself.
    • Employees can self-attest to vaccination status and employer maintains a record of who self-attests.
  • Employees who refuse to provide vaccination status are to be considered unvaccinated.
  • Employers may require all employees to wear a face covering instead of having to document vaccination status.

• Testing:
  • Employers must provide testing requirements at no cost to employees during paid time to:
    • Symptomatic unvaccinated employees, regardless of whether there is a known exposure (note that this is a new requirement).
    • Unvaccinated employees after an exposure.
    • Vaccinated employees after an exposure if they develop symptoms.
    • Unvaccinated employees in an outbreak.
    • All employees in a major outbreak.

As always, if you have any questions about workplace safety issues and COVID-19 requirements, please contact us.