• Posts by April Szabo
    Posts by April Szabo
    Senior Associate

    April Szabo focuses her practice on employment matters, with an emphasis on practical, cost-effective client counseling and litigation. She specializes in providing clients with Human Resources guidance, including wage/hour ...

According to various reports, federal OSHA will release proposed regulations regarding the vaccine mandate for employers with 100 or more employees in the near future.  While such guidance has been eagerly anticipated in the employment community for weeks, California employers will have to wait for further guidance from Cal/OSHA, which has jurisdiction over most California workplaces.  Cal/OSHA recently revised its FAQs as follows: 

On May 3, 2021, the California Department of Public Health issued guidance that fully vaccinated people do not need to quarantine if they are asymptomatic. COVID-19 Public Health Recommendations for Fully Vaccinated People.  On May 7, 2021, Cal/OSHA followed this lead and updated its COVID-19 Emergency Temporary Standards FAQs to reflect the change as follows:

On March 19, 2020, Governor Newsom signed Senate Bill 95 (“SB 95”), which requires employers with 26 or more employees to provide up to 80 hours of Supplemental Paid Sick Leave (“SPSL”) to eligible employees.  SB 95 takes effect March 29, 2021, and will expire on September 30, 2021.

CalSavers Registration Deadline Extended

In December 2018, California announced the start of its CalSavers retirement savings program.  The program is available to California employees whose employers do not offer a workplace retirement plan, to self-employed individuals, and to others who want to increase their retirement savings.  Through this program, employees working for a participating employer may automatically contribute a portion of their pay to a Roth (post tax) Individual Retirement Account.  Individuals who do not work for a participating employer but want to save under CalSavers can set up recurring contributions. 

Tags: CalSavers
EEOC Issues Guidance on Employers' Responses to the Coronavirus Pandemic

On March 19, 2020, the United States Equal Employment Opportunity Commission (EEOC) issued guidance for employers on responding to legal concerns under the Americans with Disabilities Act (ADA) arising out the COVID-19 (Coronavirus) pandemic.  The guidance, What You Should Know About the ADA, the Rehabilitation Act, and COVID-19, addresses common employer concerns about what medical inquiries an employer can make, when it can ask employees to leave the workplace based on such concerns, and under what circumstances an employer can ask for a doctor’s release from such employees before allowing them to return.  Among the key components of the guidance are the following:

Tags: EEOC

The California Department of Industrial Relations (“DIR”), the agency that oversees the Department of Labor Standards Enforcement (“DLSE” or “the Labor Commissioner”), workers’ compensation, and Cal-OSHA (among other things), released guidelines confirming its interpretation of California wage and hour laws potentially applicable to the workplace in light of the spread of COVID-19.

Keep On Truckin’—California State Court Judge Finds ABC Test Does Not Apply to Owner-Operators; Federal Court Extends TRO In Favor of California Trucking Association

On January 8, a trial court judge in Los Angeles issued an order finding the ABC Test—now used to determine independent contractor status in California—could not be applied to independent contractor truck drivers (“owner-operators”) due to federal pre-emption concerns.  While the decision represents a major victory for trucking companies, it will be subject to challenge.

On September 24, 2019, the U.S. Department of Labor announced a final rule modifying the earnings thresholds necessary to exempt executive, administrative and professional employees from the Fair Labor Standards Act’s (FLSA) minimum wage and overtime pay requirements. The rule also allows employers to count a portion of certain bonuses/commissions towards meeting the salary level. The thresholds were last updated in 2004, though the DOL briefly adopted more significant changes—which never took effect—in 2015.

On May 29, Assembly Bill (AB) 5 passed the California State Assembly, moving Californians one step closer to full implementation of a new test for independent contractor classification. AB5, which was introduced by Assemblywoman Lorena Gonzalez of San Diego, seeks to codify the California Supreme Court’s April 2018 Dynamex decision, which established the “ABC test” to determine classification of workers as employees or independent contractors.

Since its introduction in December 2018, AB5 has undergone several revisions.  Most significantly, the bill would confirm that the ABC test will be used in making worker classification decisions under California’s Wage Orders, Labor Code, and Unemployment Insurance Code.  Also important is a set of carve-outs that appeared in the most recent iteration of the bill: the ABC test would not apply to doctors, dentists, lawyers, architects, accountants, engineers, insurance agents, investment advisers, direct sellers, real estate agents, hairstylists and barbers renting booths at salons, some marketers, and human resources professionals. 

The California Chamber of Commerce and the “I’m Independent” Coalition are seeking to make additional exemptions to AB5, including carve-outs for short-term projects, business-to-business contracts, and others.

AB5 will now move to the Senate, where it will be heard in Senate Labor Committee in late June 2019.

Guidance for Employers

Though AB5 has not yet been passed into law, California businesses using independent contractors should consult with employment counsel concerning classification of contractors under the Dynamex ABC test.  The authors of this article welcome any questions on the legislation or the ABC test, and are following developments in the law closely. 

For more information and updates about Dynamex and its implications, employers can read our prior Alert on Dynamex here and register for the Firm’s complimentary webinar on this topic here.

On January 1, 2018, the California Legislature enacted the New Parent Leave Act (“NPLA”). The NPLA expanded baby-bonding benefits to employees of smaller employers (20-49 employees), a benefit that had been previously available only to employees of larger employers (50 or more employees) under the California Family Rights Act (“CFRA”).

New Posting Requirement

Along with this expansion comes a new poster that discusses the NPLA, CFRA, and Pregnancy Disability Leave:

www.dfeh.ca.gov/wp-content/uploads/sites/32/2017/06/CFRA_PregnancyLeave_English.pdf 

All employers with 20 or more employees must display the poster.  The Department of Fair Employment and Housing (“DFEH”) requires that the posters be placed where they can be easily seen by employees and applicants for employment.

In addition, if 10% or more of the employer’s workforce at any given location speaks a language other than English, the employer is required to post the notice in such other languages.  The DFEH published several translated versions of the poster at its website:

www.dfeh.ca.gov/resources/posters-and-brochures-and-fact-sheets/poster-and-brochure-tab-list/?target=posters

An employer must also incorporate a description of the NPLA in the next version of its employee handbook.

As an alternative to displaying multiple government-issued posters, some employers prefer to purchase and display an “all-in-one” poster from various sources.  Employers should review the posters to ensure they are up to date.

Medical Certification Form

The DFEH also recently updated the form that addresses the certification of a health care provider for leaves under the CFRA and the Family and Medical Leave Act (“FMLA”):

www.dfeh.ca.gov/wp-content/uploads/sites/32/2017/12/CFRA-Certification-Health-Care-Provider_ENG.pdf

Please contact the authors or your usual employment law counsel at AALRR if you have any questions regarding the DFEH, NPLA, CFRA, or other posting requirements.

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