While each state has the power to set wage and other workplace standards for labor performed within its borders, that authority can blur when truckers and passenger carrier personnel divide their work time between the states. On several suits by pilots and flight attendants, the California Supreme Court has ruled certain interstate transportation workers are entitled to state’s protections on paychecks and paydays even for labor outside the state: Ward v. United Airlines and Oman v. Delta Airlines (June 29, 2020).

The employees, all of whom only worked part time inside the state, sought class action recovery of up to $4,000/employee for airline failure to issue California-compliant paystubs (Labor Code 226) on their wages. They argued in part that if they live and pay taxes in California, United and Delta should comply with section 226 no matter where labors were performed. Contending a state’s laws should not reach beyond its geographic boundaries, United and Delta countered they should not be responsible for such compliance when most work was performed outside California.

Observing that California’s current paycheck protection law was introduced in 1943 “at the behest of railroad employees,” many of whom worked interstate, the court found 226 paystub requirements apply when this state “is the [one] that has the most significant relationship to the work,” specifically:

• workers who perform the majority of their work in California; and
• workers who are “based” in California and do not work more than half their time in any other state. According to the court, “based” means California is the physical location where the worker presents himself or herself to begin work.

Thus for interstate haulers and carriers, the answer to the question of whether this paystub law applies to its employees is that “it depends.”

The ruling means, for example, that an Arizona hauler must comply with California’s detailed paycheck requirements (as well as the state’s accompanying twice/month minimum paydays law) for a Phoenix-based driver who spends more than half of his or her road time in California in any given pay period. No compliance is required for pay periods in which that driver spends only half or less of his/her road time in California.

The decision also requires an air carrier to comply with these paystub rules for a flight attendant based for example out of LAX but who only works a few hours in-state over any pay period. However, that carrier would not have to comply with the California rules for a New York-based flight attendant who spends comparable time flying in and out of Los Angeles.

The court was careful to explain that the application of other California labor laws to interstate workers must be analyzed on the particular language and meaning of those specific sections. Thus, as it was not critical to the case, the Oman decision found that the geographic reach of this state’s minimum wage laws to hours worked by such multi-state personnel would have to wait for a future case.

See also:

• Payday Mayday; Read the Fine Print: Payroll Companies Not Responsible for Employer Compliance (January 24, 2020)
• Correct Paystubs Save Bucks; Learn California’s Specific Paystub Requirements to Avoid Penalties (May 3, 2018)
• Paperless Paystubs; Do They Comply with California Wage Statement Laws? (February 28, 2018)
• Strike a Blow for Employers: California Expands the Exception for Listing “Hours Worked” on Paystubs (August 31, 2016)

For more information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Tim Bowles
July 2, 2020

With temperatures rising to summer levels in parts of the state, employer obligations to protect outdoor workers from heat-related illnesses, beginning at 80 degrees Fahrenheit, come into force. Areas not yet reaching that threshold should prepare for the heat to come.

Particularly with continuing state and local COVID-19 workplace face mask requirements, employers must be particularly vigilant to protect their employees from heat illness.

Principal Deputy Assistant Secretary Loren Sweatt for the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) recently blogged tips to prevent heat illness, including:

1. Be aware that new and temporary workers are at most risk. All workers, with special emphasis on those unaccustomed to such conditions, need to acclimatize to hot conditions.

We note that employers should be cognizant that workers who have been out for months and left at a time when temperatures were much cooler will need to reacclimatize and reacquaint themselves with the risks and protections associated with work in hot climates.

1. Ensure all workers focus on “water, rest, and shade” as their mantras for work in hot conditions. Frequent drinking of water and electrolytes and cool-down breaks in air-conditioned or shaded areas are key.

1. Use measures such as ventilation, fans, job function rotation, and scheduling work at cooler hours.

1. Know that indoor workers in settings such as foundries, boiler rooms, kitchens, laundries, and others are also susceptible to heat illness and should be given similar protection.

1. Ensure all workers in hot environments are familiar with heat illness symptoms, have them work with a buddy and watch each other for signs of illness, and notify supervisors or call 911 when needed.

1. Download and use the OSHA-NIOSH Heat Safety App on iPhones or Androids to assist in calculating the heat index in a work area, assessing the risk, and planning accordingly.

Ms. Sweatt’s suggested measures are similar to California’s Occupational Safety & Health Standards Board (OSHSB) regulations which include special measures for high-heat (over 95 degrees) such as observing employees for signs of heat illness and ensuring 10-minute cool-down breaks every two hours.

California’s Division on Occupational Safety and Health (Cal/OSHA) provides additional tools and information, including heat illness triggers, handlings, and creating a required written prevention plan.

A heat illness plan should be part of an employer’s required Illness and Injury Prevention Plan (IIPP), made available at the applicable worksite(s). A business must convey/translate its plan into the language understood by the majority of the company’s workers.

An IIPP for outdoor workers should also address Valley Fever, caused by a fungus in the top two to twelve inches of soil in parts of the state, especially Fresno, Kern, Kings, Madera, Merced, San Luis Obispo, and Tulare counties. Outdoor workers are susceptible to Valley Fever when triggers such as high wind, digging, and plowing release the fungi into the air. Several Cal/OSHA regulations address Valley Fever safety practices.

See also:

• California’s Threshold for Required Heat Illness Safeguards (August, 2019)
• Summer Is Here – Are your Outdoor Workers Protected from Heat Illness? (June, 2018)
• New Regulations Coming to Prevent Heat Illness in the California Workplace (April, 2017)
• New Heat Illness Prevention Measures Now in Place (May, 2015)

For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Helena Kobrin
July 1, 2020

The California Department of Public Health issued a detailed, updated June 18 Guidance requiring cloth face coverings to limit the spread of COVID-19. The guidance’s mandatory provisions include:

Face covering in high-risk situations:

• inside of, or in line to enter, any indoor public space
• obtaining services in the health care sector (e.g. hospital, pharmacy, dental office, etc.)
• waiting for or riding on public transportation or in a taxi, private car service, or ride-sharing vehicle

• engaged in work, whether at the workplace or performing work off-site, when
• interacting in-person with any member of the public
• working in any space visited by members of the public, regardless of whether anyone from the public is present at the time
• working in a space where food is prepared or packaged for sale or distribution
• walking through common areas, such as hallways, stairways, elevators, and parking facilities
• in any room or enclosed area where other people (except for members of the person’s own household or residence) are present when unable to physically distance

• driving or operating any public or private transportation (when no passengers are present, face coverings strongly recommended)
• while outdoors in public spaces when unable to maintain a physical distance of six feet from non-members of the same household or residence.

Exemptions: Persons:

• aged two years or under (due to risk of suffocation)
• with medical, mental health or disability conditions that prevent them from wearing a mask
• who are hearing impaired, where ability to see the mouth is essential for communication
• for whom wearing a face covering would create a workplace safety risk as determined by government guidelines
• seated at a restaurant or other food or beverage establishment while they are eating and drinking (provided they are able to maintain minimum six foot distance from persons not members of the person’s own household or residence
• engaging in outdoor work or recreation, e.g. swimming, walking, hiking, etc., when alone or with household members, provided six-foot minimum distance maintained, and
• who are incarcerated (but prisons and jails directed to have their own specific guidances)

The guidance observes that a cloth face covering’s primary role is to reduce the release of infectious particles when someone speaks, coughs or sneezes, “including someone who has COVID-19 but feels well.” The guidance also reminds the public that face coverings are not a substitute for physical distancing, washing hands and staying home when ill.

California employers are responsible for ensuring compliance in their places of work.

See also:

• Faith and The Pandemic (June 4, 2020)
• Paid Sick Leave Going Viral; California Cities and Counties Expanding Pandemic-Related Benefits (May 29, 2020)
• COVID-19, I Presume; Workers Compensation Coverage for Diagnosed Workers (May 20, 2020)
• When the Show Must Go On; Key Protection for an Employee’s COVID-19 Diagnosis/ Symptoms (April 8, 2020)
• Workplace Safety Nets; The Coronavirus Outbreak and California Unemployment Benefits (March 27, 2020)
• Telecommuting in Response to Coronavirus Outbreak (March 18, 2020)

For more information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Tim Bowles
June 26, 2020

The Coronavirus Aid, Relief, and Economic Security (CARES Act) protects small business from COVID-19’s economic impact. Section 1102 of the Act created the Paycheck Protection Program (PPP) to help employers keep their workers on payroll. Qualifying PPP loans may be forgiven up to the full principal amount. See also, COVID-19 Safety Nets (April 14, 2020)

On June 5, 2020, President Trump signed the Paycheck Protection Program Flexibility Act of 2020 (Flexibility Act) providing these modified PPP provisions:

• Borrowers may opt to use their funds for up to 24 weeks from the date of loan disbursement, or until December 31, 2020, whichever comes first. For loans made before June 5, 2020, borrowers may continue to elect to use the original eight-week period. (Forbes recently published “pro’s and con’s” on such election.)
• Borrowers may now use 60 percent, not the previous 75 percent, of the funds on payroll costs, and the remaining funds may be used on mortgage interest, rent, utilities and other costs.
• The amount of loan forgiveness shall no longer be reduced based on fewer full-time employees on payroll if the borrower is able to document an inability to rehire eligible employees and hire similarly qualified employees for unfilled positions, or return to pre-February 15, 2020 business activity level due to compliance with applicable COVID-19 health directives.
• Employers may now have until December 31, 2020 instead of June 30, 2020, to rehire certain workers to receive loan forgiveness.
• For all loans made on or after June 5, 2020, the maturity date has been extended to five years.

On June 17, 2020, the Small Business Administration (SBA) issued a revised user-friendly PPP loan forgiveness application implementing the Flexibility Act modifications, as well as a simplified form for borrowers that: (i) are self-employed and have no employees; or (ii) did not reduce the compensation of their employees by more than 25 percent and did not reduce the number or hours of their employees; or (iii) experienced reductions in business activity as a result of COVID-19 health directives and did not reduce employee compensation by more than 25 percent.

Employers should use the loan money for the reasons indicated in the CARES Act, clearly document the use
of all PPP funds, fill out all forms truthfully and accurately, and consult with a CPA or other tax advisor as needed.

Additional Resources:

• SBA PPP website
• SBA guidance
• SBA PPP Interim Final Rules
• SBA and Treasury Dept FAQs

For more information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Cindy Bamforth
June 25, 2020

California minimum wages are currently $13.00 per hour for employers with 26 or more employees and $12.00 for employers with 25 employees or less. On January 1 of each coming year, these will continue to increase one dollar/hour until reaching $15 per hour for the larger employers (26-plus) in 2022 and for the smaller employers a year later. See California’s Gradual Increases in Minimum Wage, to Reach $15.00 Per Hour by January 1, 2022 (April, 2016).

The statewide minimum wage is not the end of the inquiry. A number of municipalities have higher minimum wage rates and particular definitions of what “employers” or “employees” they impact.

Effective July 1, 2020, 12 cities and two counties will increase their minimum wage rates while Santa Rosa initiates a higher standard. Many of these will continue to rise in coming years. See the UC Berkeley Center for Labor Research and Education listing for regular updates.

Operations spanning more than one of these jurisdictions face the potential complication of which ordinance or ordinances to apply. While the solution is likely unique to each employer, a possible best practice is to set wages at the highest rate among the choices.

Some cities have enacted separate minimum wage laws for hotel workers. Each rate is increasing on July 1: Long Beach ($15.47); Santa Monica ($17.13) and City of Los Angeles ($17.13).

A covered employer must also conspicuously post an updated wage notice/bulletin for each applicable jurisdiction. Click the above city/county link(s) to download the most current notice.

See also:

• Minimum Wage Laws (January 31, 2020)
• What’s New in 2020 – California Minimum Wage Rates (December 12, 2019)
• Cautionary Tales Episode 31 – Residential Care Facility Not Feeling the Love (July 12, 2019)

Helena Kobrin
June 18, 2020

California law prohibits discrimination against applicants and employees for their membership in any protected class, including religious creed, disability and age (40+). The California Fair Employment and Housing Council (FEHC) has issued new regulations effective July 1, 2020, to better protect such individuals.

Advertisements. The new regulations prohibit practices that adversely impact applicants or employees age 40 or older, unless the practice is job-related and consistent with business necessity and no alternative practice could accomplish that business purpose with a lesser discriminatory impact.

With limited exceptions, employers are thus prohibited from using recruiting and advertising language that could reasonably be construed to deter or limit employment of anyone age 40 or older. Examples include: “digital native,” “young,” “college student,” “recent college graduate,” “boy,” or “girl” or any other terms implying a preference for younger employees.

Pre-employment inquiries. Inquiries regarding an applicant’s available work schedule “shall not be used to ascertain the applicant’s religious creed, disability, or medical condition” and must “clearly communicate that an employee need not disclose any scheduling restrictions based on legal protected grounds.”

Online application technology must not eliminate applicants based on their schedule unless “job-related and consistent with business necessity.” Online applications must “includes a mechanism for the applicant to request an accommodation.”

Best Practices:

California employers should promptly update their websites, marketing materials, job applications, advertisements, and hiring forms and policies to meet the new requirements.

For example, when inquiring about work schedules, job advertisements, candidate application forms (online or physical copies), and job interviews must now include language such as: “Other than time off for reasons related to your religion, a disability, or a medical condition, are there any days or times when you are unavailable to work?”

Full compliance with these revised regulations should help prevent or promptly correct discriminatory practices.

See also:

• COVID-19 Specific Expansions to Our Model Employee Handbook and Forms (June 11, 2020)
• Abolishing Workplace Bigotry: A Work in Progress (March 5, 2020)
• Avoid Discriminatory Job Recruitment and Advertising (August 2, 2019)
• Unusual Job Interviews (May 9, 2019)
• Asking for Job Applicant Age is a No-No (August, 8, 2017)
• Job Interviewer Guidelines (June 9, 2016)

For more information please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Cindy Bamforth
June 12, 2020

While we are not yet out of the woods, state and local government continue to ease restrictions upon life as we at least used to know it.

As pandemic pressure has eased and public demands have increased, at least 35 counties have announced their ability to accelerate their transition through “Stage 2” of California’s “Pandemic Roadmap”: the reopening of lower-risk workplaces and other spaces.

We also count 17 counties which have rescinded their local orders in order to follow just the statewide guidances:

• Colusa
• Calaveras
• El Dorado
• Inyo
• Kern
• Kings
• Lake
• Mono
• Nevada
• Placer
• Riverside
• San Benito
•   San Bernardino
• San Luis Obispo
• Stanislaus
• Tehama and
• Yolo

To our knowledge, and as of June 5, counties with stay at home orders in place include:

Thanks again to Daniska Coronado for this continuing compilation.

See also:

• Faith and The Pandemic (June 4, 2020)
• Paid Sick Leave Going Viral; California Cities and Counties Expanding Pandemic-Related Benefits (May 29, 2020)
• COVID-19, I Presume; Workers Compensation Coverage for Diagnosed Workers (May 20, 2020)
• Groundhog Day Week Nine; “Safer at Home” Moving to Stage Two, Phased Reopening (May 15, 2020)
• When the Show Must Go On; Key Protection for an Employee’s COVID-19 Diagnosis/ Symptoms (April 8, 2020)
• Workplace Safety Nets; The Coronavirus Outbreak and California Unemployment Benefits  (March 27, 2020)
• Telecommuting in Response to Coronavirus Outbreak (March 18, 2020)

For more information about these laws or other employment issues related to coronavirus, contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Tim Bowles
Daniska Coronado
June 5, 2020

Setting aside the vital importance of people’s spiritual ties in times of need, California (echo’ing the feds) had regarded churches “non-essential” from the March 19 start of its safer-at-home orders. As pandemic pressure has eased and public demands have increased, the state has now acknowledged the religion’s role in pandemic recovery: COVID-19 “Industry” Guidance for Places of Worship and Providers of Religious Worship and Cultural Ceremonies (May 25, 2020) (Guidance).

The County and City of Los Angeles swiftly followed suit, adopting an amended Appendix F Protocol for Places of Worship to their public health orders (Orders). As the city put it: houses of worship “provide services that are recognized to be critical to the health and well-being of [Los Angeles].”

The Guidance and both Orders require religious groups to limit capacity to the lower of 25 percent of maximum allowed occupancy or 100 people.

The Guidance includes 13 pages of standards from social distancing, wearing masks, cleaning, and excluding persons who are ill to church-specific protocols such as not passing collection plates but allowing digital offerings or other safe drop boxes, shortening services, and avoiding singing and group recitation, which can cause droplets to spread.

Appendix F contains similar requirements and suggestions in checklist form for houses of worship.

The California Department of Public Health is to revisit the Guidance by June 15 for its public health impact and for phased restoration to full activity.

Permitting religious providers to re-open, albeit on a limited basis thus far, will help seekers receive spiritual guidance in the pandemic’s wholesale uprooting of people’s lives.

See also:

• Paid Sick Leave Going Viral; California Cities and Counties Expanding Pandemic-Related Benefits (May 29, 2020)
• COVID-19, I Presume; Workers Compensation Coverage for Diagnosed Workers (May 20, 2020)
• Groundhog Day Week Nine; “Safer at Home” Moving to Stage Two, Phased Reopening (May 15, 2020)
• When the Show Must Go On; Key Protection for an Employee’s COVID-19 Diagnosis/ Symptoms (April 8, 2020)
• Workplace Safety Nets; The Coronavirus Outbreak and California Unemployment Benefits (March 27, 2020)
• Telecommuting in Response to Coronavirus Outbreak (March 18, 2020)

For more information about these laws or other employment issues related to coronavirus, contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Helena Kobrin
June 4, 2020

In response to COVID-19, a growing number of California cities and counties have issued expanded paid sick leave laws primarily targeting employers exempt from the federal Families First Coronavirus Response Act (FFCRA).  
To our knowledge, and as of May 29, 2020:

California also issued a statewide April 1, 2020 Supplemental Paid Sick Leave Order (and mandatory poster) for food sector employers with 500 or more employees.

While this is a start for employers and employees affected by these new standards, steady change has been a constant in response to changing pandemic conditions. Please check the above links and other online resources for any updates.
See also:

• COVID-19, I Presume (May 20, 2020)
• It’s a Wash- COVID 19 Paid Leave and Tax Credits (April 9, 2020)
• COVID-19 Gets Noticed (April 1, 2020)
• Federal Coronavirus Workplace Relief (March 23, 2020)

For more information about these laws or other employment issues related to COVID-19, contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Cindy Bamforth
May 29, 2020