2021 COVID-19 SUPPLEMENTAL PAID SICK LEAVE UPDATE

EFFECTIVE MARCH 29, 2021

  • Employees who work for Employers with more than 25 employees are entitled to up to 80 hours of Paid Sick Leave (PSL).
  • The Employee can make the request for PSL orally or in writing.
  • This leave is retroactive to January 1, 2021 and will run through September 30, 2021.
  • If an Employee took leave for COVID-related reasons prior to March 29, 2021, the employee should make an oral or written request to his or her employer for payment for up to 80 hours of work missed due to COVID-19.

Criteria to Qualify for the PSL:

If an employee is unable to work or work remotely, for any of the following reasons:

  1. Caring for the Herself or Himself. The employee is subject to quarantine or an isolation period related to COVID-19 as defined by an order or guideline of the California Department of Public Health, the CDC, or a local health officer with jurisdiction over the workplace, has been advised by a healthcare provider to quarantine, or is experiencing COVID-19 symptoms and seeking a medical diagnosis.
  2. Caring for a Family Member. The employee is caring for a family member who is subject to a COVID-19 quarantine or isolation period or has been advised by a healthcare provider to quarantine due to COVID-19, or is caring for a child whose school or place of care is closed or unavailable due to COVID-19 on the premises.
  3. Vaccine Related. The employee is attending a vaccine appointment or cannot work or work remotely due to vaccine-related symptoms.

Which Employees Are Covered:

  • Full-Time Employees are entitled to 80 hours of leave.
    • Full-time firefighters might be entitled to more.
  • Part-Time Employees with varied schedules, 14 times the average number of hours worked per day for the past six months.
  • Rate of Pay for COVID-19 Supplemental PSL for non-exempt (hourly) employees must be the highest of the following for each hour of leave:
    • Regular pay for the workweek in which leave is taken.
    • State minimum wage.
    • Local minimum wage.
    • Average hourly pay for preceding 90 days (not including OT)
  • Exempt Employees must be paid the same rate of pay as wages calculated for other paid leave time.

An Employer may not retaliate or discriminate against any employee requesting leave under the COVID-19 Supplemental Paid Sick Leave.

For more information about your specific business, please contact Labor and Employment attorneys Ted Schneider and Christopher Correa at (805) 764-6370.

Meal Period Timekeeping – California Supreme Court says “No” to Rounding?

Many employers use rounding to adjust an employee’s work hours to the nearest whole time increment, such as five or ten minutes. Employers beware! However, in a newly published decision, timekeeping rounding must not apply to meal periods.

California employers must provide employees with a 30-minute, uninterrupted meal period that begins no later than the end of the fifth hour of work. If an employee is not provided the timely and uninterrupted meal period, the employee is due one hour of premium pay.

In the case of Donohue v. AMN Services, LLC, the California Supreme Court ruled against an employer’s timekeeping practice of rounding meal period timeclock punches. The Court further held noncompliant meal periods results in a rebuttable presumption of liability against the employer at the summary judgment stage.

AMN used an electronic timekeeping system to track employees’ compensable time. Employees used their computers to punch in and out at the beginning and end of lunch. Employees could also ask to manually adjust any inaccurate time punches, such as forgetting to clock out for lunch. The computer system automatically rounded employee time punches to the nearest 10-minute increment.

The Supreme Court used the following example to illustrate how AMN recorded meal break punches:

“[I]f an employee clocked out for lunch at 11:02 a.m. and clocked in after lunch at 11:25 a.m., [AMN’s timekeeping software] would have recorded the time punches as 11:00 a.m. and 11:30 a.m. Although the actual meal period was 23 minutes, [AMN’s timekeeping software] would have recorded the meal period as 30 minutes.” Another example is if an employee clocked in for work at 6:59 a.m. and clocked out for lunch at 12:04 p.m., the system would record those time punches as 7:00 a.m. and 12:00 p.m. In this example, the employee would have begun their meal period after five hours and five minutes of work, but the timekeeping system would not have recorded that violation.

The California Supreme Court ruled that it is the employer’s responsibility to implement compliant meal period policies that allow employees to take the full, uninterrupted 30-minute meal period without reduction of any kind, including from neutral rounding timekeeping practices.

Further, an employer’s timekeeping policy must ensure that the employee being relieved from duty for a 30-minute meal period is accurately reflected in the employer’s time records.

Employers using rounding systems should consult with legal counsel before continuing such practice. If you have questions about your business’s rounding or timekeeping policies and procedures and would like to determine if your practices comply with the Supreme Court’s decision and applicable law, contact Schneiders & Associates, L.L.P. to speak with an employment law expert.  

By: Ted Schneider, Esq.

Demographic Pay Data Reporting – Due March 31, 2021

Large employers are now required to provide demographic pay data to the California Department of Fair Employment and Housing (DFEH) by March 31, 2021. SB 973 requires private employers of 100 or more employees, that are also required to file the federal EEO-1 report with the Equal Employment Opportunity Commission (EEOC), to report demographic and pay data information to the DFEH.

The reporting year will be the year preceding the due date for the report and should include a “snapshot” of the workforce for any single pay period of the employer’s choice between October 1 and December 31 of the reporting year.

Employers must report the number of employees by race, ethnicity and sex whose annual earnings fall within each of the 12 pay bands and seven race/ethnicity categories.

What must be included in the report?

SB 973 requires that the pay data report include:

  1. The number of employees by race, ethnicity, and sex in each of the following job categories:
  2. Executive or senior level officials and managers.
  3. First or mid-level officials and managers.
  4. Professionals.
  5. Technicians.
  6. Sales workers.
  7. Administrative support workers.
  8. Craft workers.
  9. Operatives.
  10. Laborers and helpers.
  11. Service workers.
  12. The number of employees by race, ethnicity, and sex, whose annual earnings fall within each of the pay bands used by the United States Bureau of Labor Statistics in the Occupational Employment Statistics survey.

Pay Bands

  • $19,239 and under
  • $19,240 – $24,439
  • $24,440 – $30,679
  • $30,680 – $38,999
  • $39,000 – $49,919
  • $49,920 – $62,919
  • $62,920 – $80,079
  • $80,080 – $101,919
  • $101,920 – $128,959
  • $128,960 – $163,799
  • $163,800 – $207,999
  • $208,000 and over

Race and Ethnicity

  • Hispanic/Latino
  • Non-Hispanic/Latino White
  • Non-Hispanic/Latino Black or African American
  • Non-Hispanic/Latino Native Hawaiian or Other Pacific Islander
  • Non-Hispanic/Latino Asian
  • Non-Hispanic/Latino American Indian or Alaskan Native
  • Non-Hispanic/Latino Two or More Races
  • The total number of hours worked by each employee counted in each pay band during the “Reporting Year.”
  • The employer’s North American Industry Classification System (NAICS) code.
  • Employers may, but are not required to, provide clarifying remarks concerning the information in the report.

The DFEH counts the total number of employees on the employer’s payroll toward the 100-employee (at least one employee in California) reporting threshold. DFEH is allowing a 30-day extension for employers who have been impacted by the COVID-19 pandemic. Deferral requests can be filed online using DFEH’s online form. Employers can submit their reports on the DFEH website.

If you have questions regarding the new reporting requirement or other employment law questions, please call us today!

By: Ted Schneider, Esq.  

Annual Employment Law Update, 2021 – Webinar

The emergence of COVID-19 has changed the world as we once knew it; therefore, it should come as no surprise that the virus would impact employment law as well. California’s ever-changing employment laws will have employers scrambling to keep up in 2021! What are the reporting requirements if someone is exposed to COVID-19 at the workplace? What is the PPE requirement? Is my employee eligible for workers’ compensation benefits in the event of an outbreak? These are all new questions that employers need answers to.  The employment law attorneys at Schneiders & Associates are prepared to help!

Join us on Friday, January 22, 2021 at 8:30 am, when our employment law experts, Roy and Ted Schneider, will discuss the new employment law changes in 2021, via Zoom.

In addition to COVID-19 related employment law updates, there are several other employment law changes that the anticipated new year will bring. In addition to new laws related to COVID-19, other topics to be discussed include employee handbooks, wage and hour, contract employees, and much more! Do not miss the most important webinar of the year!

Click here to register for this event. For more information, please contact Marketing and Client Relations Director Angela Mumme at 805-764-6370 or by email at amumme@rstlegal.com

Annual Employment Law Update, 2021 – Webinar

The emergence of COVID-19 has changed the world as we once knew it; therefore, it should come as no surprise that the virus would impact employment law as well. California’s ever-changing employment laws will have employers scrambling to keep up in 2021!

What are the reporting requirements if someone is exposed to COVID-19 at the workplace? What is the PPE requirement? Is my employee eligible for workers’ compensation benefits in the event of an outbreak? These are all new questions that employers need answers to.  The employment law attorneys at Schneiders & Associates are prepared to help!

Join us on Friday, January 22, 2021 at 8:30 am, when our employment law experts, Roy and Ted Schneider, discuss the new employment law changes in 2021, via Zoom.

In addition to COVID-19 related employment law updates, there are several other employment law changes that the anticipated new year will bring. In addition to new laws related to COVID-19, other topics to be discussed include employee handbooks, wage and hour, contract employees, and much more! Do not miss the most important webinar of the year!

Register for this event. For more information, please contact Marketing and Client Relations Director Angela Mumme at 805-764-6370 or by email at amumme@rstlegal.com.  

COVID-19 and the New California Workplace – What to Expect in 2021!

The emergence of COVID-19 has changed the world as we once knew it; therefore, it should come as no surprise that the virus would impact employment law as well. California’s ever-changing employment laws will have employers scrambling to keep up in 2021! The employment law attorneys at Schneiders & Associates are prepared to help! Below are some of the significant changes related to COVID-19 that employers should look out for as we head into the new year.

SB 1159: COVID-19 Workers’ Compensation

SB 1159 provides that if a California employee tests positive for COVID-19 during an “outbreak” at the employee’s worksite (not including the employee’s home), the employee may be awarded workers’ compensation benefits, including full hospital, surgical, and medical treatment. Compensation is based on the presumption that the employee contracted COVID-19 at work. It is now the burden of the employer to disprove that claim.

AB 685: COVID-19 Reporting

AB 685 establishes employer reporting and noticing requirements upon notice of a potential exposure to COVID-19 at the workplace. Employers are required to provide notice to employees who were potentially exposed to COVID-19 within one business day of receiving notice of a COVID -19 exposure.

Employers are also required to notify their local public health agency within 48 hours of a COVID-19 “outbreak” (3 or more cases within a 2-week period).

Cal/OSHA can issue an Order Prohibiting Use (OPU) to shut down a worksite that exposes employees to an imminent hazard related to COVID-19 and can issue citations for serious COVID-19 violations without giving prior notice.

AB 1947: Extended Time Period to File a DLSE Claim

AB 1947 amends existing labor law, which prohibits discrimination or retaliation against employees who complain about Labor Code violations or other violations of law, to provide for a longer time for employees to report complaints and file a claim with the Division of Labor Standards Enforcement (DLSE) - extending the deadline from 6 months to one year. Any person who believes that they have been discharged or otherwise discriminated against in violation of any labor law may now file a complaint with the DLSE within one year after the occurrence of the violation.

AB 1867: Supplemental Paid Sick Leave

AB 1867 expands supplemental paid sick leave for COVID-19-related reasons for employers not covered by the federal Families First Coronavirus Response Act (FFCRA), insuring every employee has access to paid sick days if they are exposed or test positive for COVID-19, including health care providers and first responders that are excluded from the FFCRA.

Employees who work for covered employers can take COVID-19 supplemental paid sick leave if the worker is:

• Subject to a federal, state or local quarantine or isolation order related to COVID-19;

• Advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19; or

• Prohibited from working by the employer due to health concerns related to the potential transmission of COVID-19.

Employees working from home are not eligible for supplemental paid sick leave.

AB 2043: Occupational Safety and Health – Agricultural Employers and Employees

AB 2043 requires employers to disseminate information on best practices for COVID-19 infection prevention to agricultural employees, in both English and Spanish. The bill also requires that Cal/OSHA work with employers and employees on outreach campaigns targeting agricultural employees.

AB 2537 and SB 275: PPE Requirement

AB 2537 and SB 275 require that employers provide certain employees with Personal Protective Equipment (PPE) and maintain a three-month stockpile of PPE.

In addition to COVID-19 related employment law updates, there are several other employment law changes that the anticipated new year will bring! Mark your calendar for Friday, January 22 at 8:30 a.m., when our employment law experts will discuss the new employment law changes in 2021, via Zoom.

Big News for the Music Industry – More California Jobs will be Exempt from “ABC” Test

Existing law, commonly known as the “ABC” test and codified by AB 5, makes it more difficult for companies to classify workers as independent contractors rather than employees. The hiring entity has the burden of establishing that an individual is an independent contractor, not an employee, under the “ABC test.”

Under the existing “ABC” test, a worker will be deemed to be an employee, unless the hiring entity proves: (A) that the worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact; (B) that the worker performs work that is outside the usual course of the hiring entity’s business; and (C) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed. Each of these requirements needs to be met in order for the presumption that a worker is an employee to be rebutted, and for a court to recognize that a worker has been properly classified as an independent contractor. 

Existing law contained certain exceptions from the “ABC” test for certain categories of workers.  AB 2257, signed by Governor Newsom on September 4, 2020, will add some additional exceptions to the “ABC” test. Exemptions were added for musicians, writers, photographers, tutors, interpreters and other industries. The bill additionally exempts certain occupations in connection with creating, marketing, promoting, or distributing sound recordings or musical compositions. The bill also exempts a musician or musical group for the purpose of a single-engagement live performance event from the “ABC” test, thus making it easier to classify such musicians as independent contractors.  This will allow industry professionals and musicians to accept freelance work once again. AB 2257 additionally exempts artists, appraisers, insurance field representatives, and youth sports coaches, allowing them to work as independent contractors. 

However, each of the foregoing exceptions contains numerous criteria that must be satisfied before a hiring entity can rely on the new exemptions rather than applying the “ABC” test. For example, musicians and vocalists who are not royalty-based participants in the work created during a specific engagement must be treated as employees for purposes of receiving minimum and overtime wages for hours worked during the engagement.

For a still photographer, photojournalist, or videographer, in order to avoid the “ABC” test and be classified as an independent contractor, the worker must work under a written contract that specifies the rate of pay, the worker must not be replacing an employee who performed the same work at the same volume for the hiring entity, the worker cannot primarily perform the work at the hiring entity’s business location, and the worker cannot be restricted from working for more than one hiring entity.

Therefore, although additional occupations and industries have been added to AB 5 as exempt from the “ABC” test, each occupation or worker must be individually analyzed pursuant to the specific criteria set forth in AB 5, as amended by AB 2257.

If you would like more information on how this new law could affect your hiring of workers, contact Schneiders & Associates, L.L.P. today. 

By: Ted Schneider, Esq.

Returning Employees to Work During COVID-19

Ventura County is entering Stage 2 of California’s Resilience Roadmap. That means office-based businesses are now being permitted to reopen; however, before doing so business owners must be sure that they can affirmatively answer the following four questions:

  1. Is re-opening consistent with applicable governmental orders?
  2. Can the business implement the recommended health and safety actions?
  3. Can the business conduct ongoing monitoring?
  4. Have you registered with the County of Ventura?

In order to satisfy the above criteria, businesses must implement the following, prior to reopening their doors:

Develop and implement a COVID-19 Prevention Plan

To satisfy the above criteria, businesses must implement a workplace plan of action prior to reopening its doors. Employers must have a written “worksite-specific COVID-19 Prevention Plan” that must be posted throughout the workplace. There must also be at least one employee whose sole job is to make sure that the Prevention Plan is being followed.

Social-Distancing Requirements

Employers should promote, encourage, and enforce social-distancing rules, such as complying with 6-feet of social-distancing at all times and limiting the number of employees in one workspace (cubicles, warehouses, open spaces, mail room, etc). Other steps should include removing or blocking common area seating, limiting, or prohibiting non-employees from coming into the worksite (including spouses, rides, friends, and customers/clients when possible). Following this practice will keep the number of people in a given location at a minimum.

If employees eat on site, provide an adequate number of tables to meet social-distancing requirements. Employees who are friends should not pull up additional chairs, etc. Encouraging employees to eat outside will also limit the number of people sitting together during rest breaks. Remember to provide adequate shade, water, and access to the building.

Enforcement will require the business owner to be proactive and attentive to things that they may have taken for granted in the past. Enforcement includes notifying employees that they will be disciplined for violating the workplace social-distancing polices and posting the requirements in obvious places.

Cleaning and Disinfecting

Cleaning and disinfecting the workplace will require businesses to provide sanitizer stations and sanitary hand wipes. Reducing the risk of exposure, such as sanitizing desks, tabletops, work-stations, and keyboards – especially if employees share workstations or computers – is an important part of reopening. New signage, such as “Wash Hands” should be numerous and in visible locations (entrances, bathrooms, inner office doors, elevators, keycard scanners, etc.).

Face Mask Requirement

If your business is requiring the use of face masks for people entering your place of business, post adequate signage and provide notice when possible. Consider having face masks available. Do not put employees in a position to enforce the face mask requirement. Have a system in which employees can notify management or security. Face masks mandates are becoming stricter "around the world," which includes Ventura County employers! Here are some things to remember:

  • Cloth face masks are acceptable.
  • Face coverings do not protect the wearer and are not personal protective equipment (PPE).
  • Face coverings can help protect people near the wearer, but do not replace the need for physical distancing and frequent handwashing.
  • Employees should wash or sanitize hands before and after using or adjusting face coverings.
  • Avoid touching eyes, nose, and mouth.
  • Face coverings should be washed after each shift.

Remote Work and Staggered Shifts

Let employees work remotely when possible or stagger work shifts, alternating remote and office on Monday, Wednesday, Friday and Tuesday and Thursday. Staggered rest breaks and staggered meal breaks do not violate California Labor Code.

If you are an employer and need help with implementing the proper return-to-work procedures, or if you have questions, please contact an experienced employment law attorney at Schneiders & Associates today!

By: Chris Correa, Esq.

Other Resources:

WHO: https://www.who.int/emergencies/diseases/novel-coronavirus-2019/technical-guidance-publications?healthtopics=b6bd35a3-cf4f-4851-8e80-85cb0068335b&publishingoffices=aeebab07-3d0c-4a24-b6ef-7c11b7139e43&healthtopics-hidden=true&publishingoffices-hidden=true

CDC: https://www.cdc.gov/coronavirus/2019-ncov/index.html

OSHA: https://www.osha.gov/Publications/OSHA3990.pdf (brochure)

DOL: https://www.dol.gov/agencies/whd/pandemic

Ventura County: https://www.vcemergency.com/vc-reopens (attestation forms for reopening and forms for Prevention Plans)

Authorities: World Health Organization (WHO), Center for Disease Control (CDC), Occupational Safety Health Administration (OSHA), Department of Labor (DOL), Ventura County Emergency (VCEmergency)

California 2020: New Decade, New Employment Laws!

Each new year brings about new changes in employment law. Governor Gavin Newsom signed into legislation a number of new laws that impact California employers. Here’s what to look for in 2020:

AB 5 - New Employee Classification Test: The law codifies and modifies the California Supreme Court’s “ABC test” from its decision in the Dynamex case last year. The law severely limits the ability of California companies to classify workers as independent contractors rather than employees. Stated in an abbreviated manner, to satisfy the ABC test and classify a worker as an independent contractor, the company must prove that the worker is (A) free from the company’s control, and (B) performs work outside the company's primary business, and (C) is regularly engaged in the trade the worker is hired for, independent of work for the company. There are specific exemptions for certain industries.

AB 9 - Statute of Limitations for FEHA Claims Expanded: The period of filing a complaint for workplace harassment, discrimination or retaliation has been extended from one to three years.

AB 25 - Employee Data Exempt from CCPA: The current California Consumer Privacy Act (CCPA) allows consumers various rights with regards to their personal information held by businesses, including to have their personal information deleted. The bill broadly included employees and job applicants, who could potentially ask to have information deleted from their personnel files. Under the new law, employee data is exempt from the CCPA; however, the exemption is only good for one year.

AB 51 – Banning Mandatory Employment Arbitration Agreements: Beginning January 1, 2020, employers are prohibited from requiring any applicant for employment or employee to sign an arbitration agreement as a condition of employment or continued employment. Employers cannot retaliate against or terminate any employee or applicant who refuses to sign an arbitration agreement.

SB 83 – Expansion of Paid Family Leave: Beginning July 1, 2020, Paid Family Leave (PFL) benefits from California’s State Disability Insurance program will be increased from six to eight weeks.

SB 142 - Expanded Lactation Accommodation Requirements: Employer requirements to provide appropriate workplace lactation accommodations have been expanded. The added requirements require employers to provide a lactation room close to the employee’s work area, shielded from view, and free from intrusion. In addition, employers must provide access to a sink with running water and a refrigerator. Employers must implement a lactation accommodation policy.

SB 188 - Protected Hairstyles: Under FEHA, the law prohibits discrimination and harassment based upon a person’s natural hairstyle. Natural hairstyles such as “braids, locks, and twists” are now protected.

SB 778 – Extending Deadline to Complete Sexual Harassment Prevention Training: Sexual harassment prevention training deadline has been extended from January 1, 2020 to January 1, 2021.

Join us in late January for our Annual Employment Law Update! Our attorneys will discuss these new employment laws in detail and provide you with the tools and information your California business needs to ensure you are in compliance for 2020.