Category Archives: Newsletters

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.  

by Gerald Sauer and Sonya Goodwin

In anticipation of California’s economy opening back up on June 15, we have received many questions about how to welcome workers back into the office and what the current guidance is on COVID-19 related issues. While the guidance is ever changing, below are answers to some of the frequently asked questions. This is by no means an exhaustive list, and we encourage anyone dealing with issues related to employees returning to the workplace to contact us, as each employer’s situation is different. 

Can an employer require its employees to be vaccinated?

Yes. Under both the federal EEOC and California DFEH guidelines, employers can require employees to be vaccinated in order to return to the workplace, with limited exceptions. Employers must provide reasonable accommodations to employees who cannot get vaccinated due to a medical condition or disability, or because of sincerely held-religious beliefs, unless doing so would create an undue hardship.

Can an employer require proof of vaccination?

Yes. An employer can require proof of vaccination before allowing employees to enter the workplace. However, as stated above, employers must accommodate individuals who cannot get vaccinated due to a medical condition or disability, or a sincerely-held religious belief. Employers should inform employees to not provide any additional medical information, such as diagnoses or medical conditions, when showing proof of vaccination.

What are the current mask requirements in the workplace?

Even though on June 15 vaccinated individuals will not be required to wear masks in many settings, Cal/OSHA’s (the agency that creates and implements the rules for workplace safety) current rules require that all workers wear masks in the workplace, unless an employee is alone in a room; when eating or drinking; when using a respirator or other respiratory protection; when an employee cannot use a face covering due to a medical or mental condition; if hearing impaired or communicating with a hearing-impaired person; or when specific work tasks cannot be performed with a face covering. Other measures to protect against COVID-19 infection must be implemented when face coverings cannot be used. Additionally, employers are required to provide employees with face coverings, or cover the costs. However, Cal/OSHA recently drafted revised rules, which are expected to be voted on and approved later this week and become effective by the end of the month. The revised rules would not require fully vaccinated individuals to wear masks in the workplace. 

Can an employer mandate that all employees wear masks even if the state does not require it?

Yes. Even if it is not required in the workplace after Cal/OSHA revises its rules, the state’s rules allow individual establishments to set stricter rules. This means that employers can mandate that all employees wear masks. 

What are the current physical distancing requirements in the workplace?

Employers need to ensure that employees can maintain 6-feet physical distance, except when employees are briefly walking past each other, such as in a hallway. If physical distancing is not possible, employers are required to install solid partitions, such as Plexiglass, at fixed work stations.  However, the recently revised Cal/OSHA rules, if passed, would not require physical distancing.

Can an employer require employees entering the workplace to take a COVID-19 test?

Yes. Per the EEOC and DFEH guidelines, employers can require employees to take a COVID-19 test before entering the workplace because it is “job related and consistent with business necessity.” However, employers should maintain test results in a confidential medical file, compensate employees for their time taking the test, and pay for all costs associated with taking the test.

Because the workplace rules regarding COVID-19 are constantly changing, you should always seek legal advice before implementing any policies or practices concerning this topic.

If you have any questions, please do not hesitate to contact Gerald Sauer or Sonya Goodwin. 

by Gerald Sauer and Sonya Goodwin

Supplemental Sick Leave Bill

Governor Newsom signed SB 95 on March 19 which requires an additional 80 hours of paid sick leave, retroactive to January 1, 2021, for employees who work for public or private employers with more than 25 employees.  
Employees are entitled to leave for the following reasons: 

• The employee is subject to a quarantine or isolation period related to COVID-19;

• The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;

• The employee is attending an appointment to receive a vaccine for protection against COVID-19;

• The employee is experiencing symptoms related to a COVID-19 vaccine that prevents the employee from being able to work or telework;

• The employee is experiencing symptoms related to COVID-19 and seeking medical diagnosis;

• The employee is caring for a family member who is subject to a quarantine or isolation order or has been advised to self-quarantine;

• The employee is caring for a child whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19 on the premises.

Guidelines For The Workplace

In light of the reopening of many businesses due to the decrease in coronavirus cases, many employers and employees have questions concerning their rights. The Department of Fair Employment and Housing (“DFEH”) recently issued a bulletin that provides clarity in dealing with COVID-19 in the workplace. The highlights include the following:

• Employers can ask all employees entering the workplace if they have had COVID-19 symptoms.

• Employers can measure an employee’s body temperature for the limited purpose of evaluating if the employee may have COVID-19.

• Employers can require that employees submit to viral testing before allowing the employee to enter the workplace.

• Employers can require employees to wear personal protective equipment during the COVID-19 pandemic.

• Employers can send employees home if they present COVID-19 symptoms or if they have tested positive for COVID-19.

• If an employee tests positive for COVID-19, employers are required to keep the employee’s identity confidential and take any steps necessary to prevent other employees from being infected.

• Employees are entitled to up to 12 weeks of paid leave under the California Family Rights Act to care for their or their family members serious illness.

• Employers can require that their employees receive FDA-approved COVID-19 vaccines.

If you have any questions, please do not hesitate to contact Gerald Sauer or Sonya Goodwin. For more details, please review the DFEH bulletin. 

by Gregory Barchie

The recent surge in COVID-19 cases has brought jury trials in California to a standstill. As a result, the number of criminal and civil cases on the courts’ dockets continues to grow exponentially. Since criminal jury trials have priority, civil jury trials will be forced to take a back seat for the foreseeable future. Fortunately, the legal system has adapted to conducting business remotely. Appellate and trial court proceedings, settlement conferences, bench trials and even depositions are being conducted remotely on various platforms such as Zoom, Webex and BlueJeans.  Private arbitrations and mediations are also being conducted virtually. In dealing with the pandemic, California has imposed new, and some would say long overdue, changes to civil court rules and procedures. Many of these changes will stay in place even after the pandemic is over, demonstrating that COVID-19 will have had an indelible effect on civil litigation. Below is a summary of some of those recent changes.

Electronic Service

Senate Bill 1146, which was signed by Governor Newsom and took effect immediately, amended California Code of Civil Procedure § 1010.6 to require electronic service of documents on a represented party in cases initiated after January 1, 2019, so long as the serving party confirms at the outset the electronic service of address for counsel being served. There are a few exceptions to this new rule. For instance, self-represented parties are not required to accept electronic service. If a statute requires a document be served personally or by certified or registered mail, electronic service is not permitted without the express consent of the party being served. These two exceptions effectively prevent electronic service of summons on an evasive defendant.

Remote Appearance at Depositions

Existing law requires that (1) a party-deponent to appear physically at the deposition and be in the presence of the court reporter, and (2) an order be obtained upon a showing of good cause of no prejudice to the parties that a nonparty deponent (and not a party deponent) appear at a deposition by telephone. Senate Bill 1146, however, provides now that a deponent (party or nonparty) or deposing party may elect to have the court reporter attend the deposition by telephone, videoconferencing or other remote electronic means. This effectively excuses the deponent from being physically present at the deposition, even when being sworn in. Senate Bill 1146 also provides that any party or attorney of record may, but is not required to, be physically present at the deposition at the location of the deponent, subject to any protective order issued by the court. These changes provide increased flexibility to take a deposition remotely, which would reduce travel time and provide a convenient means to take a deposition of a witness who does not live in California or even in the United States (of course, you will still be required to properly serve those witnesses).

Extensions of Time

COVID-19 has caused civil trials to be continued for nearly a year so that courts can work through the backlog created by the shutdown. Previously, a trial continuance did not continue all pre-trial deadlines unless expressly ordered by the court. However, Senate Bill 1146 amended California Code of Civil Procedure § 599 to provide temporary relief from this rule. During the current state of emergency related to COVID-19 and 180 days thereafter, a continuance of the trial will automatically continue all pre-trial deadlines, including discovery, the exchange of expert witness information, mandatory settlement conferences, and summary judgment motions, that have not expired prior to March 19, 2020 unless otherwise ordered by a court or agreed to by the parties. The pre-trial deadlines are extended for the same length of time as the continuance of the trial date.  

If you have any questions on any of the above, please do not hesitate to contact Gregory Barchie.