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NEW 2022 CALIFORNIA STATE EMPLOYMENT LAWS
January 10, 2022

As the COVID-19 pandemic drags on, and the nation braces itself for our third year without returning to normalcy, the California legislature has focused more on the impact the pandemic has had on specific industries. Civil rights protests across the nation have resulted in the passing of bills that target structural racism and biases, not only in our legal system, but our labor force. Governor Newsom signed hundreds of bills into law and more than 80 employment bills at the close of this legislative session. This Employment Law Update provides the latest in COVID-19 laws, followed by an update on other non-COVID-related laws applicable to California employers. Unless otherwise noted, these new laws are effective as of January 1, 2022.

NEW COVID-19 LAWS AND REGULATIONS

The California Occupational Safety and Health Administration (Cal/OSHA) was very active in 2021, revising its Emergency Temporary Standard (ETS) regarding COVID-19 that took effect last year and proposing both further revisions to the ETS and more permanent regulations. The Federal Occupational Safety and Health Administration (OSHA) has also released its own long-awaited ETS regarding COVID-19, which was almost immediately challenged by multiple lawsuits that have resulted in OSHA delaying enforcement until the legal challenges are resolved by the U.S. Supreme Court. The California Legislature also made efforts to combat the spread of COVID-19. Given the rapidly evolving landscape, legal counsel should be contacted for reviewing how the most recent new legal developments impact your business.

Federal OSHA Emergency Temporary Standard
(Currently Stayed Pending Legal Challenges)

On November 4, 2021, federal OSHA released its long-awaited COVID-19 ETS. The regulations require most employers with 100 or more employees to either mandate COVID-19 vaccination among employees, or require unvaccinated employees to wear masks in most situations and undergo a weekly COVID-19 test. Employers are not required to pay for the weekly tests for unvaccinated employees unless required to by state or local laws or a labor contract, but employers are required to pay employees for time spent getting vaccinated and recovering from side effects.


Under the ETS, employers were given until December 6, 2021 to comply with all non-testing requirements, including determining employee vaccination status, ensuring all unvaccinated employees wear masks, establishing a vaccination policy, and providing paid time off for getting vaccinated and recovering from side effects. Employers were also given until January 4, 2022, to require that all unvaccinated employees undergo weekly testing. However, almost immediately after OSHA published its ETS, multiple lawsuits were filed seeking to invalidate the ETS and prevent its enforcement. On November 6, 2021, the Fifth Circuit Court of Appeals issued a temporary stay preventing OSHA from enforcing the ETS. The consolidated lawsuits were subsequently assigned to the Sixth Circuit Court of Appeals. On November 23, 2021 OSHA filed with the Sixth Circuit an emergency motion to dissolve the Fifth Circuit’s stay of the ETS. That emergency motion was granted and the stay was dissolved by the Sixth Circuit on December 17, 2021. However, the Sixth Circuit’s order dissolving the stay was challenged, which set the stage for a final resolution by the United States Supreme Court on January 7, 2022. Although OSHA’s ETS is technically in effect currently, OSHA has suspended its enforcement of the ETS until the legal challenges are resolved by the U.S. Supreme Court.

Who the OSHA ETS Applies To

The ETS applies to most employers with more than 100 employees. However, it does not apply to (1) federal contractors covered by the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors, (2) employers who provide healthcare services or healthcare support services and are already covered by OSHA’s previously issued healthcare-specific ETS, and (3) employees of employers who work from home, work exclusively outdoors, or do not work in a workplace where other coworkers or customers are present.

Although the OSHA ETS currently only applies to most employers with more than 100 employees, the OSHA ETS is temporary, and OSHA has invited comments from the public regarding a more permanent standard, which may lower the employee headcount threshold.

Employer Requirements Under the OSHA ETS

Under the OSHA ETS, an employer must either: (1) require that employees are vaccinated; or (2) require unvaccinated employees to be regularly tested and wear masks in most workplace settings.

If an employer does not require that all employees be vaccinated, the employer must require unvaccinated employees to regularly submit to a COVID-19 test. For unvaccinated employees who regularly work in the workplace, employees must undergo weekly testing. Employees who regularly work from home must be tested at least one week before returning to the workplace. Unvaccinated employees who are diagnosed with COVID-19 do not have to undergo testing from 90 days following the date of their positive diagnosis. Unvaccinated employees are also required to wear a mask when indoors or in a vehicle with another person, with limited exceptions where the employee is eating or drinking, is alone in a closed room, or where using a mask creates a hazard in the workplace.

Employers are required under the OSHA ETS to pay employees up to four hours of paid time, including travel time, for the time spent obtaining each vaccine dose. Employers are also required to provide paid sick leave for a reasonable amount of time to recover from the vaccine’s side effects. While employers cannot require employees to use accrued paid sick leave for the time spent getting vaccinated, they can require employees to use accrued paid sick leave for time spent recovering from side effects. Employers are not required to pay for any costs associated with unvaccinated employees getting tested for COVID-19 unless other laws, regulations, or collective bargaining agreements provide otherwise.

The OSHA ETS requires employers to establish a written policy that outlines how the employer intends to comply with the ETS. Employers are also required to maintain records of their employees’ vaccination status and test results. In addition, employers must remove COVID-19 positive employees from the workplace until certain criteria are met, report work-related COVID-19 fatalities and hospitalizations, require employees to notify them about a positive test result, and provide all employees with a document published by the Centers for Disease Control and Prevention: Key Things to Know About COVID-19 Vaccines.

Under the OSHA ETS, employees may be exempted from a vaccination requirement for qualifying medical or religious accommodations under federal civil rights laws.

Impact on California

States with their own federally-approved agencies under the OSH Act, which includes California, had 30 days from the date the OSHA ETS was published to either adopt the OSHA ETS or impose their own regulations that were at least as effective as the OSHA ETS. While Cal/OSHA’s Standards Board planned to meet on November 18, 2021, to discuss adoption of such a regulation, it announced in advance of that meeting that it would delay its vote in the wake of federal OSHA’s announcement that it would suspend enforcement of the OSHA ETS while legal challenges are pending. Although Cal/OSHA’s Standards Board stated that it intended to publish its proposed regulation in advance of that meeting, the proposed language was never published. As such, it is unclear whether Cal/OSHA intends to adopt the OSHA ETS or a more stringent standard. Cal/OSHA’s Standards Board is scheduled to meet again on January 20, 2022, but it is unclear whether the legal challenges to the OSHA ETS will be resolved by that time.

Status of Current Legal Challenges

The Fifth Circuit Court of Appeals blocked enforcement of the OSHA ETS only two days after it was published. In its ruling, the Fifth Circuit Court of Appeals questioned whether OSHA had the authority to issue the OSHA ETS. The various lawsuits filed to prevent enforcement of the OSHA ETS were then consolidated and the Sixth Circuit Court of Appeals was chosen to resolve the disputes. Although the Sixth Circuit ended up granting OSHA’s request to reverse the Fifth Circuit’s stay of the ETS, the Sixth Circuit’s order reversing the stay was challenged, which set the stage for a final resolution by the United States Supreme Court on January 7, 2022.

Technically, OSHA’s ETS is currently in effect. However, OSHA has stated that it will not enforce its ETS until the U.S. Supreme Court has decided whether OSHA can proceed forward with implementing its ETS. OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10, 2022 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, 2022, so long as an employer is exercising reasonable, good faith efforts to comply with the standard.

Cal/OSHA Revised Emergency Temporary Standard
(Effective January 14, 2022)

Under Cal/OSHA’s original ETS, effective December 1, 2020, all employers were required to implement and maintain a written COVID-19 Prevention Program that, among other things, identified and evaluated employee exposures to COVID-19 health hazards; implemented compliant policies and procedures to correct unsafe and unhealthy conditions (such as safe physical distancing, modifying the workplace and staggering work schedules); and provided and ensured workers wear face coverings to prevent exposure in the workplace.

On June 17, 2021, Cal/OSHA implemented a revised ETS, which made a number of impactful changes. Among those changes were the removal of physical distancing requirements in most circumstances and the requirement to wear masks for fully vaccinated employees. However, the revised ETS also included several additional requirements for employers, including the requirement that employers provide respirators (such as the N95) to unvaccinated employees at their request and that employers provide training to employees regarding how to wear respirators.

On December 16, 2021, Cal/OSHA adopted a second revision to its ETS in response to the Omicron variant of the COVID-19 virus. This revised ETS is scheduled to go into effect on January 14, 2022. The revised ETS make the following key changes:

Changes to Face Mask Definition and Requirements

Under the revised ETS, an acceptable face mask cannot allow any light to pass through the mask when held up to a light source; they cannot have any slits, visible holes or punctures; they must fit snugly over the nose, mouth and chin with no large gaps on the outside of the face. Employees with a medical or mental health condition or disability may now be exempted from face mask requirements. In these circumstances, if the employee cannot wear a non-restrictive alternative such as a face shield, that employee must now (1) maintain a six-foot distance from other people and (2) be either fully vaccinated or be tested at least once a week for COVID-19.

In addition, employers will now also be required to provide face masks and ensure employees wear them if they are required to do so by the California Department of Public Health (CDPH) or by an applicable local public health order (e.g., Los Angeles County). On December 13, 2021, the CDPH issued new “Guidance for the Use of Masks” to all Californians that requires masks to be worn in all indoor public settings, irrespective of vaccine status, for the next four weeks (i.e. through February 15, 2022).

Close Contact Testing for Vaccinated Employees

One of the most significant changes to Cal/OSHA’s revised ETS involves the exclusion and testing of fully vaccinated employees after they have been in close contact with an infected individual. Under the revised ETS, employers must provide testing to fully vaccinated employees who have been in close contact with an infected individual. Although fully vaccinated employees can generally still come to work after being in close contact, they must wear a face mask and maintain 6 feet of distance from others for at least 14 days following the last date of close contact.

If a close contact is excluded from the workplace and is symptom-free, they may generally return after 14 days and they may return earlier if (1) 10 days have passed since the last known close contact; or (2) 7 days have passed since the last known close contact and the employee tests negative for COVID-19 using a COVID-19 test. Under either scenario, the employee must wear a face mask and maintain 6 feet of distance from others until 14 days have passed since the last date of close contact.

COVID-19 Testing

The revised ETS has expanded the definition of “COVID-19 test” to include home tests and over-the-counter tests. However, the revised ETS prohibits tests that are self-administered and self-read, unless observed by the employer or an authorized telehealth proctor.

Further Revisions Forthcoming

Cal/OSHA will undoubtedly further revise its ETS in 2022. Following the adoption of the second ETS, Governor Newsom signed an executive order permitting a third revision of the ETS. While the second ETS is scheduled to expire on April 14, 2022, employers can expect a third revision to be issued by Cal/OSHA this year.

In addition, although Cal/OSHA has yet to adopt a vaccinate-or-test approach similar to the federal ETS, it appears that Cal/OSHA is waiting to see if the U.S. Supreme Court will allow the federal ETS to proceed forward. If the federal ETS is allowed to be implemented, Cal/OSHA will be required to adopt and implement its own standards that meet or exceed those imposed by the federal ETS. Cal/OSHA’s Standards Board is scheduled to meet on January 20, 2022, to discuss any additional updates.

AB 654 – COVID-19 Reporting Requirements
(Effective October 5, 2021)

On October 5, 2021, a new law passed by the California Legislature, AB 654, took effect and modified employers’ duty to notify workers of a potential COVID-19 exposure at the workplace. AB 654 modifies requirements for employers in the following ways:

Duty to Notify Employees

Under AB 654, employers are required to provide notice to all employees who were at the same workplace as a COVID-19 positive employee that they may have been exposed to COVID-19. It also adds a new requirement that employers are required to provide notice to any employees who had close contact with a positive COVID-19 employee (meaning being within six feet of a COVID-19 case for a cumulative total of 15 minutes or greater in any 24-hour period within or overlapping with the high-risk exposure period).

Duty to Provide Information

Under AB 654, employers must also provide employees who at the same workplace as an employee within the infectious period with information regarding COVID-19-related benefits, including the employer’s sick leave policies, workers compensation benefits, and options for COVID-19 exposed employees. In addition, the new law clarifies that employers must notify employees of cleaning and disinfection plan only applies to employees who were on the premises at the same worksite as the qualifying individual within the infectious period.

If an employer has an outbreak in its workforce, meaning three or more COVID-19 cases, the employer must notify the local public health agency of the workplace of the names, number, occupation and workplace of those individuals.

NEW NON-COVID-RELATED EMPLOYMENT LAWS
AB 1033 – California Family Rights Act

AB 1033 includes parents-in-law to the definition of “parent” for purposes of an employee qualifying for a California Family Rights Act (“CFRA”) leave—specifically, for leave of up to 12 workweeks for a serious health condition of the employee’s family member who is a parent-in-law.

AB 1033 also modifies the small employer (employers with between 5 - 19 employees) family leave mediation pilot program. When an employee requests an immediate right to sue alleging a violation of the family and medical leave provisions of CFRA, the Department of Fair Employment and Housing (the “DFEH”) must provide the employee with a written notice of the requirement for the employee to contact the department’s dispute resolution division and the requirement for mediation (if mediation is requested by employer or employee) prior to filing a civil action.

SB 331 – “Silenced No More Act” Settlement and Non-disparagement Agreements

SB 331 expands a law passed in 2018, the “Stand Together Against Non-Disclosures Act” (the “STAND Act”) prohibiting settlement terms that prevent the disclosure of factual information regarding sexual assault, sexual harassment, workplace harassment or discrimination based on sex, failure to prevent workplace harassment or discrimination based on sex, and/or retaliation for reporting workplace harassment or discrimination based on sex—that are related to a claim in a lawsuit or in an administrative action.

Amends Code of Civil Procedure Section 1001

SB 331 now expands the STAND coverage to apply to factual information that are related to any workplace harassment or discrimination claims, including failure to or retaliation for reporting those claims, based on any protected category covered by the Fair Employment and Housing Act (the “FEHA”), not just based on sex. This prohibition on confidentiality provisions in settlement agreements (NDAs) applies only to agreements involving civil or administrative actions, and parties can still keep the settlement amount confidential.

Amends Government Code Section 12964.5

SB 311 also prohibits employers from requiring employees to sign non-disparagement agreements, or other documents that effectively deny the employees’ right to disclose information about unlawful acts in the workplace, as a condition of employment or continued employment or in exchange for a raise or bonus.

For non-disparagement or other contractual provisions that restrict an employee’s ability to disclosure information related to workplace conditions, employers must include, in substantial form, 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.”

SB 311 also prohibits employers from including any confidential provision that prevent employees from disclosing information about unlawful acts in the workplace in employees’ separation agreements. Furthermore, separation agreements must include a provision that the employee has a right to consult an attorney and must provide the employee with “reasonable time” (at least five business days) in which to do so. An employee may waive the reasonable time period only if the decision to do so is knowing and voluntary and is not induced by the employer through fraud, misrepresentation, or a threat to withdraw or alter the offer prior to the expiration of the reasonable time period, or by providing different terms to employees who sign/would sign it earlier.

This section does not apply to negotiated settlements to resolve claims filed in court, before an administrative agency, in an alternative dispute resolution forum, or through an employer’s internal complaint process.

SB 762 – Payment of Fees and Costs in Arbitration

Existing law provides that if an employment or consumer arbitration requires the drafting party (usually the employer) to pay certain fees and costs before the arbitration can proceed and/or during the pendency of the arbitration proceeding, the employer must pay the arbitration fees or costs within 30 days after the due date. If the employer fails to do, the employer is in material breach of the arbitration agreement, is in default of the arbitration, and waives its right to compel arbitration. These laws came hard on the heels of large corporations failing to timely pay arbitration fees and costs and preventing employees from arbitrating their claims.

SB 762 further regulates the timing of fee and cost payments in arbitration. SB 762 requires the arbitration provider, immediately after the initial filing requirements are met, to provide an invoice for any fees and costs required for arbitration to begin to all parties, all by the same means, and all on the same day. The invoices must be issued as due upon receipt, unless the arbitration agreement provides otherwise. For fees and costs due during the pendency of the arbitration, any extension of time for the due date must be agreed upon by all parties.

AB 1003 – Wage Theft Can Constitute Grand Theft

AB 1003 makes the intentional theft of wages in an amount greater than $950 from one employee or $2,350 in the aggregate from two or more employees by any employer in any consecutive 12-month period punishable as grand theft. AB 1003 creates California Penal Code section 487m.

  • “Wages” includes gratuities, benefits, and other compensation and wages subject to prosecution may be recovered as restitution
  • “Employee” includes independent contractors
  • “Employer” includes hiring entities of independent contractors
  • Grand theft is generally punishable either as a misdemeanor by imprisonment in county jail for up to one year or as a felony by imprisonment in county jail for 16 months or 2 or 3 years
  • The employee or Labor Commissioner may also commence a civil action seeking remedies available under the Labor Code

AB 1561 – Classification of Independent Contractors (Revising and Extending Certain Exemptions)


Amends Labor Code Section 2778 and 2781

Existing law exempts specified occupations and business relationships from the application of the ABC test. For example, licensed manicurists and individuals performing work pursuant to subcontracts in the construction industry are exempted, provided that they each satisfy their own specified criteria. Existing law makes the exemptions for licensed manicurists and those working pursuant to subcontracts in the construction industry inoperative on January 1, 2022. However, AB 1561 extends the expiration dates for these two exemptions to January 1, 2025.

Amends Labor Code Section 2782

Existing law exempts the relationship between a data aggregator and an individual providing feedback to the data aggregator if the individual is paid consideration for the feedback and the amount (prorated to an hourly basis) is equal to or greater than the minimum wage.

AB 1561 eliminates the consideration paid requirement and revises the exemption to apply to relationships between a data aggregator and a research subject. “Research subject” is defined as "any person who willingly engages with a data aggregator in order to provide individualized feedback on user interface, products, services, people, concepts, ideas, offerings or experiences, and does not engage solely for the purposes of completing individual tasks, except as the tasks relate to providing such feedback”.

Amends Labor Code Section 2783

Existing law also exempts a person or organization that is licensed by the Department of Insurance (“DIR”) or a person who provides underwriting inspections, premium audits, risk management, or loss control work for the insurance and financial service industries. AB 1561 extends the exemption to apply to persons who provide claims adjusting or third-party administration. Third-party administration must be consistent with the term “third-party administrator” as defined in Code of Regulations Title 8, Section 10112.1(cc) subdivision.

SB 727 – Expansion of Direct Contractor Liability

SB 727 extends a direct contractor’s liability for penalties (where a director contractor fails to meet payroll monitoring and corrective action requirements), liquidated damages, and interest owed by a subcontractor on account of the performance of the labor, for contracts entered into on or after January 1, 2022. It also imposes liability for the failure of a subcontractor to make payments to the California unemployment insurance fund or for failure to provide workers’ compensation benefits.

SB 727 also requires the Labor Commissioner to notify the direct contractor and subcontractor on a private works project, at least 30 days prior to taking action, of the failure of a subcontractor to pay wages and/or other applicable benefits due to workers. This notice must include the project name and name of the employer and provide that any liquidated damages awarded by the Labor Commissioner, or the court will be payable to the aggrieved employee.

SB 62 – Garment Manufacturing


SB 62 prohibits employers from paying garment manufacturing employees piece-rate compensation, which was/is the standard practice in the industry. Employers must pay garment manufacturing employees at an hourly rate, unless the employees are covered by certain collective bargaining agreements.

In addition, SB 62 significantly broadens the scope of persons and companies liable for labor violations in the garment manufacturing industry. A garment manufacturer, contractor, and/or brand guarantor (any person who contracts for the performance of garment manufacturing) are all jointly and severally liable for unpaid wages, for reasonable attorney’s fees and costs, and for civil penalties for failure to secure valid workers’ compensation coverage.

AB 701 – Regulating Production Quotas in Warehouse Distribution Centers


With the pandemic and the rise of online shopping, AB 701 was passed to establish new protections for workers at warehouse distribution centers. Under AB 701, employers who directly or indirectly—or through an agent, including a third-party employer or a temporary service or staffing agency—employ or exercise control over wages, hours, or working conditions of 100 or more employees at a single warehouse center or 1,000 or more employees at one or more warehouse centers California must provide each non-exempt employee who is subject to a production or other performance-based quota with a written description of each such quota.

  • All employees of an employer’s commonly controlled group (as defined in the Revenue and Taxation Code Section 25105) are counted in determining the number of employees employed at a single warehouse center or at one or more warehouse centers in California
  • “Warehouse distribution center” is not explicitly defined in AB 701. The definition relies on a standard used by federal statistical agencies in classifying business establishments, known as the North American Industry Classification System (NAICS) Codes, and identifies the following four industries: (1) 493110 General Warehousing and Storage; (2) 423 Merchant Wholesalers, Durable Goods; (3) 424 Merchant Wholesalers, Nondurable Goods; and (4) 454110 Electronic Shopping and Mail-Order Houses. The term “Warehouse distribution center” does not include NAICS Code 493130, Farm Product Warehousing and Storage.

Written Description

Upon hire or within 30 days of the effective date of this bill, employers must provide to each employee a written description of each quota to which the employee is required to meet. This written description must:

  1. describe the quantified number of tasks to be performed or materials to be produced/handled;
  2. define the time period to complete the quota; and
  3. describe any potential adverse action that could result from failure to meet that quota.

Compliance with a Quota

However, an employee is not required to meet a quota if:

  1. meeting the quota will not allow the employee to take a compliant meal or rest break or use of bathroom facilities (including reasonable travel time to and from bathroom facilities);
  2. the quota is not compliant with any occupational health and safety law;
    or
  3. the quota was not previously disclosed to the employee.

Unlawful Retaliation for Requesting a Written Description or Complaining of an Alleged Violation

If a current or former employee believes that compliance with a quota violated either their right to a meal or rest break or an occupational health and safety law, the employee can request, orally or in writing, a written description of each quota that applies to them and their personal work speed data over the prior 90 days. “Employee work speed data” means “information an employer collects, stores, analyzes, or interprets relating to an individual employee’s performance of a quota, including, but not limited to, quantities of tasks performed, quantities of items or materials handled or produced, rates or speeds of tasks performed, measurements or metrics of employee performance in relation to a quota, and time categorized as performing tasks or not performing tasks.” Employers must produce such descriptions to employee within 21 calendar days from the date of the request. Former employees may only make one such request, but there is no limit on requests for current employees.

There is a rebuttable presumption of unlawful retaliation if an employer discriminates, retaliates, or takes adverse action against an employee who, in the preceding 90 days, has either requested for the first time in the calendar year their quota and personal work speed data or complained to their employer or government agency about an alleged violation of AB 701.

Employee’s Remedies

Current and former employees can bring an action for injunctive relief for any alleged violations of AB 701. If they prevail, they can also recover costs and attorneys’ fees.

Current and former employees can also initiate an action under the Private Attorneys General Act of 2004, Labor Code Section 2689, et seq. (PAGA) for alleged violations of AB 701. However, the employer would have the right to cure alleged violations as set forth in Labor Code Section 2699.3 before the employees file a PAGA lawsuit.

SB 657 – Electronic Posting or Distribution of Workplace Notices

SB 657 permits the electronic posting or distribution of workplace notices. The electronic notices only serve to supplement the physical notices. This law does not alter employers’ obligation to physically post or display the required notices.

SB 606 – Workplace Safety: Enterprise-Wide and Egregious Violations

SB 606 creates two new categories of workplace health and safety violations for which the California Division of Occupational Safety and Health Administration (“Cal/OSHA”) can issue citations: enterprise-wide violations and egregious violations.

Enterprise-Wide Violations

The new law establishes a rebuttable presumption that a violation committed by an employer with more than one worksite is “enterprise-wide” if the employer has a written policy or procedure that violates workplace health and safety laws, or if Cal/OSHA has evidence of a pattern or practice of the same violation committed by that employer involving one or more of the employer’s worksites.” If the employer fails to rebut the presumption, Cal/OSHA can issue an enterprise-wide citation requiring enterprise-wide abatement.

Egregious Violations

If Cal/OSHA believes that an employer has willfully and egregiously violated an occupational safety or health standard, order, special order, or regulation, Cal/OSHA can issue a citation and deem it as “egregious”.

A violation is egregious if Cal/OSHA finds one or more of the following:

  1. The employer intentionally, through conscious, voluntary action or inaction, made no reasonable effort to eliminate the known violation;
  2. The violation resulted in worker fatalities, a worksite catastrophe (inpatient hospitalization of three or more employees caused by the workplace hazard or condition), or a large number of injuries or illnesses;
  3. The violation resulted in persistently high rates of worker injuries or illnesses;
  4. The employer has an extensive history of prior “egregious” violations;
  5. The employer has intentionally disregarded their health and safety responsibilities;
  6. The employer’s conduct, taken as a whole, amounts to clear bad faith in the performance of their duties;
  7. The employer has committed a large number of violations so as to undermine significantly the effectiveness of any health and safety problem that may be in place.

An “egregious” violation carries specified additional penalties. Furthermore, notwithstanding very narrow exceptions, each instance of an employee exposed to an egregious violation constitutes a separate violation.

The new law also significantly expands Cal/OSHA’s enforcement power. Cal/OSHA can now issue and enforce subpoenas and seek injunctions to halt the uses or operations of certain machines or equipment until corrective actions occur. The new law also expands grounds for court granting a temporary restraining order.

SB 646 – PAGA Exemption for Janitorial Employees Working Under a CBA


Under existing law, the Private Attorneys General Act (the “PAGA”) authorizes an aggrieved employee to bring a civil action to recover civil penalties on behalf of the employee and other current/former employees for certain Labor Code violations. Generally, 75% of the civil penalties recovered would be distributed to the LWDA and 25% of the civil penalties recovered would be distributed to the aggrieved employees.

SB 646 limits janitorial employees represented by a labor organization and performing work under a collective bargaining agreement (“CBA”) in effect before July 1, 2028, from filing a PAGA lawsuit. The PAGA exemption expires on the date the CBA expires or July 1, 2028, whichever is earlier.

“Janitorial employee” means “an employee whose primary duties are to clean and keep in an orderly condition commercial working areas and washrooms, or the premises of an office, multiunit residential facility, industrial facility, health care facility, amusement park, convention center, stadium, racetrack, arena, or retail establishment.” Janitorial employee does not cover:

  1. Workers who specialize in window washing
  2. Housekeeping staff who make beds and change linens as a primary responsibility
  3. Workers working at airport facilities or cabin cleaning
  4. Workers at hotels, card clubs, restaurants, or other good service operations
  5. Grocery store employee and drug-retail employees

Nevertheless, SB 646 does not preclude janitorial employees from pursuing any other civil action against their employer, for example a Fair Employment and Housing Act or Title VII of the Civil Rights Act of 1964 action.

SB 807 – DFEH Enforcement and Record Retention

SB 807 makes procedural modifications on how the DFEH enforces civil rights laws. Notable changes include:

  1. Authorizing the DFEH to appeal court decisions to compel cooperation with investigation through appeals rather than through writs (appeals create precedents);
  2. Tolling the deadlines for the DEFH to file a civil action while the DFEH is conducting investigation or in a mandatory or voluntary dispute resolution;
  3. Expanding DFEH’s methods for service of complaints (can serve electronically and other methods);
  4. Expanding where the DFEH can file civil right actions; and
  5. Extending the DFEH’s deadline to complete its investigation and issues a right-to-sue notice for a group or class complaint (for purposes of investigation, conciliation, mediation, or civil action) to two years. The time in which an individual can file a civil action for statutory violations is as a result, extended by tolling that period while the DFEH investigates.

Most importantly, SB 807 extends the record retention requirements for employers. Starting January 1, 2022, employers are required to preserve employees’ and applicants’ personnel records for four years from the date they were created, after an employee is terminated, or when an applicant is not hired by a company.

Upon receiving notice that a verified complaint has been filed, an employer must also preserve all relevant records until after the resolution of the complaint or the expiration of the statute of limitations for the claims, whichever is later.

FAMILIES FIRST CORONAVIRUS RESPONSE ACT
March 19, 2020

As expected, yesterday the President signed into law HR 6201: Families First Coronavirus Response Act. HR 6101 is a sweeping piece of legislation that aims to provide a variety of emergency relief measures to businesses and individuals, including paid family and sick leave for employers with FEWER THAN 500 employees.

Here is a link to the new law, which will take effect no later than April 2, 2020 (providing employers with up to a fifteen (15) day period to implement business protocols, policies and procedures to comply with the Act’s requirements) : https://www.congress.gov/bill/116th-congress/house-bill/6201/text. A copy of the Act is also attached to this e-mail.

The new law adds 2 new leave obligations for small and medium-sized employers through December 31, 2020.

First, it amends the FMLA for COVID-19-related leaves as follows:

  1. Amends the definition of ‘employee’ to include anyone who has been employed by an employer for at least 30 days.
  2. Amends the definition of employer from "50 or more employees" to "fewer than 500 employees."
  3. Provides leave for an employee who is unable to work or telework due to a need to care for the employee’s minor child if the child’s school or place of care has been closed or the child care provider is unavailable due to a public health emergency.
  4. Provides that the first 10 days of COVID-19-related leave may be unpaid and allows employees to choose to substitute accrued vacation/PTRO or other sick leave during this time period.
  5. After the first 10 days of unpaid leave, employers must continue paid FMLA leave at a rate of no less than two-thirds of the employee’s usual rate of pay. The Act limits the amount of required pay for leave to no more than $200 per day and $10,000 in the aggregate.
  6. Requires job restoration following any such leave for any employee of an employer with 25 or more employees.

Please note that unlike the usual FMLA eligibility requirements, an employee is eligible upon completion of 30 days of employment to take the emergency paid family leave.

Second, it provides 80 hours of paid sick leave for full-time employees (or pro-rata for part-time employees) if the employee is unable to work or telework as follows:

  1. $511 per day and $5,110 in the aggregate if:

(1) The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19;

(2) The employee has been advised by a health care provider to self-quarantine because of COVID-19; or

(3) The employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis.

  1. $200 per day and $2,000 in the aggregate if:

(4) The employee is caring for an individual subject or advised to quarantine or self-isolate

(5) The employee is caring for a son or daughter whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 precautions; or

(6) The employee is experiencing substantially similar conditions as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.

An employee is immediately eligible for paid sick leave. This new sick leave obligation is IN ADDITION TO any existing sick leave benefits already provided by the employer, and the employer cannot require the employee to first use the employer-provided sick leave benefits.

Discrimination and retaliation for exercising leave rights is prohibited. Failure to provide leave constitutes a failure to pay wages (hence exposure to wages claims). While an employee-friendly law, these new leave requirements make it more expensive for employers to do business. Employers must first pay the employees and then get reimbursed in the form of a tax credit equal to 100% of the leave wages paid by the employer. There are many questions raised by this new law, and we expect the Department of Labor to issue guidance soon. In the meantime, employers must start taking steps for the imminent requirement to comply.

DAVIS WANG PROMOTES MICHELLE YOUNKIN TO MANAGING ATTORNEY
October 24th, 2019

Saber Law Group, PLC, a woman and minority-owned full-service employment law and complex litigation firm, is pleased to announce that Michelle Younkin has been promoted to Managing Attorney.

As Managing Attorney, Ms. Younkin oversees all aspects of the Firm’s operations and, with Founder Shirley Wang, is responsible for facilitating client relationships, devising and implementing litigation strategies and providing high-level strategic advice. Ms. Younkin plays an active role in the recruitment and professional development of the Firm’s attorneys and staff and leads the Firm’s diversity, inclusion and values-based initiatives.

In addition to her management responsibilities for the Firm and the Firm’s clients, Ms. Younkin also litigates complex cases. Her current practice focuses on the defense of class and collective actions, including wage and hour claims, and discrimination claims brought under federal and state employment and fair housing statutes. She advises private and public companies and non-profit organizations, along with their boards, on best practices for compliance with wage and hour laws, the prevention of workplace discrimination and harassment, and the prevention of workplace violence.

“Michelle is an excellent attorney, and a creative, strategic thinker. Her two decades of legal practice combined with her past experience as an entrepreneur give her a distinctive perspective on the issues facing our clients. Michelle solves problems without known solutions, and I am excited that Michelle will join me in leading the growth of the firm,” says Shirley Wang, the Founder of Saber Law Group.

Prior to beginning her employment law practice, Ms. Younkin litigated antitrust and unfair business practices matters in the main office of an international law firm based in San Francisco. Her later role as Founder of a boutique e-discovery company, informs her practical, business-oriented approach to litigation and trial strategy. Ms. Younkin earned her law degree from the University of California Hastings College of the Law, and her undergraduate degree in English and Psychology, summa cum laude, from Kenyon College.

DAVIS WANG WELCOMES ADDITION OF SENIOR COUNSEL HANNIBAL P. ODISHO
October 7th, 2019

Saber Law Group, PLC, a woman and minority-owned full-service employment law and complex litigation firm, is pleased to announce the addition of Hannibal P. Odisho as its Senior Counsel.

Mr. Odisho joins Saber Law Group with a decade of employment law experience representing companies, governmental employers, and non-profit organizations in all phases of employment law litigation, including wage and hour disputes, employment whistleblower claims, and employment discrimination, harassment, and retaliation cases...Read More

News

2021 Employment Laws Updates

2019 Employment Laws Updates

2018 Employment Laws Updates

2017 Employment Laws Updates

Trainings/Presentations

Best Practices for Conducting Internal Workplace Investigations—Tips From the Trenches, 15th Annual National Association of Dealer Counsel

April 29, 2019, Dana Point, CA.

Shirley Wang on panel of speakers.

Navigating Compliance and Litigation Landmines of CA Wage and Hour Laws

May 14, 2019, Alameda County’s California Employer Advisory Council, Fremont, CA.

Shirley Wang and Courtney Rogerson on panel of speakers.

Recent Results

  • Successfully briefed, argued, and obtained from the California Court of Appeal (First Appellate District) an affirmance of judgment following a favorable jury verdict for a home care services provider and individually-named defendants on a complex personal injury matter.
  • Successfully briefed, argued, and obtained from the California Court of Appeal (Fourth Appellate District) an affirmance of judgment following dismissal from a successful demurrer and motion to strike obtained on an employment discrimination, harassment, and retaliation matter on behalf of the nation’s largest public school employees’ labor union.
  • Obtained favorable settlement prior to class certification on a class and Private Attorney General Act action complaint relating to a novel pay averaging theory of unpaid wages claims, along with other pay stub and meal and rest period claims involving service technicians for nationwide specialty services cleaning company.
  • Obtained a dismissal from the federal court of the Northern District of California for a nationwide non-profit affordable housing provider relating to a civil rights/habitability matter.
  • Obtained a dismissal of class claims from the Los Angeles County Superior Court prior to the commencement of discovery in a wage and hour class action alleging unpaid wages for off-the-clock work, missed meal and rest periods, unreimbursed business expenses, among other claims on behalf of a nationwide specialty cleaning services company.
  • Obtained voluntary dismissal following submission of a Motion for Summary Judgment on behalf of a nonprofit private club in a breach of contract matter.
  • Obtained quick voluntary dismissal of a breach of privacy lawsuit filed in San Diego County Superior court prior to filing a responsive pleading for a nationwide car dealership.
  • Successfully obtained voluntary dismissal of unpaid wages lawsuit involving an auto service technician paid on piece-rate