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 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:

• 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)

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)

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

It seemed like a good idea at the time: the rapid growth of Uber-style “gig economy” business models ostensibly offering a win-win of worker freedom and consumer convenience. Yet, California government came to another conception of such arrangements: presumed exploitation. Hence enter AB 5 and its hardball “ABC” test for independent contractor classification, effective January 1, 2020. See, The Mystery of It All; Employed or Independent? (February 7, 2020).

In an opening attack, Uber and Postmates unsuccessfully sought to bar enforcement of the new law on the grounds it unconstitutionally singled them out. See, Roadkill; Federal Court Denies Uber Request to Stop AB5 (February 21, 2020).

On May 5, the state took the offensive in turn. The California attorney general and the city attorneys of San Francisco, Los Angeles, and San Diego have sued Uber and Lyft for:

• employee misclassification
• minimum wage
• overtime
• business expense reimbursement
• meal and rest breaks
• pay stubs
• sick leave; and much more

The complaint contends rideshare drivers fail to meet any of part of the ABC independent contractor test:

1. Free from the hirer’s control and direction in connection with the performance of the work.

The complaint argues Uber and Lyft maintain control overtheir drivers in a multitude of ways including dictating what passengers they can drive, what cars they can use, setting rates, determining pay, invoicing, handling driver and passenger issues, controlling routes, logging drivers off their app for the company’s own reasons, and many more.

1. Performs work that is outside the usual course of the hiring entity’s business.

Using the companies’ public filings, the complaint states the companies are transportation companies selling on-demand rides to their customers and providing the drivers to supply those rides. Thus, the companies are not “mere technology companies” as they argue, but are “deeply enmeshed in the provision of transportation services.”

1. Customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity.

The complaint claims that Uber and Lyft drivers do not have their own transportation businesses, their driving requires no special skills or training, they do not have investments in their driving beyond a vehicle and a smartphone, and more. It also argues that the limited choices drivers have, such as when to drive, do not meet the normal decision-making level of business owners.

The process shall continue. Uber and Lyft will defend vigorously (first court appearance not until October 7) while exploring all other options, including greater driver independence in their business models as well as a possible ballot initiative to repeal or revise AB 5.

The initiative process – requiring the proponent to gather signatures from a minimum 5% of the number of people who voted in the most recent election for governor within 180 days – will no doubt be challenging in our pandemic times.

Whatever the outcome of this battle of titans, the state is turning resources back to perhaps the hottest workplace issue in play before the pandemic hit. California business still engaged in decisions over worker classification are best advised to finish that work.

See also:

• Bullet Dodging Part 6, Real Estate Agent Exemptions from Stringent Limits on Independent Contractor Status (November, 2019).
• Bullet Dodging Part 5, The Referral Agency Exception to California’s Strict Independent Contractor Definition (November, 2019).
• Bullet Dodging Part 4, Building Subcontractors’ Exemption from the Strict New Limits on Who is “Independent” (October, 2019).
• Bullet Dodging Part 3, California’s “Professional Services” Exemption to Strict Independent Contractor Definition Licensed Beauticians Among the Eligible (October, 2019).
• Bullet Dodging Part 2, California’s “Business-to-Business” Exception to Strict Independent Contractor Definition (October, 2019).
• Dodging the Bullet, The Industries and Professions Not Subject to California’s New Independent Contractor Restrictions (October, 2019).

For assistance in correct classification decisions, contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Helena Kobrin
May 22, 2020

As much of the U.S. begins to dig out after months of pandemic-inspired “hibernation,” many of us resume reach to the wider world. My attention returns to Liberia and Sierra Leone and our firm’s support of Applied Scholastics International (APS) and its African Literacy Campaign (ALC). See, My True Pay (January 16, 2020).

We launched ALC’s 2020 phase in February only to collide with the “stay in place” directives of nearly every national and state government in the northern hemisphere, including all West African countries. Liberia and Sierra Leone have been particularly sensitive to COVID-19’s potential consequences from the havoc Ebola created in that region in 2014-2015.

While Ebola reportedly took the lives of some 4,800 Liberians (out of 11,300 deaths in the region), the current pandemic’s public health impact has been relatively light. With a population of some 5,000,000, Liberia reportedly counts 269 documented COVID-19 cases, with 242 recovered and 27 deceased. See, Johns Hopkins Coronavirus Resource Center, nation-by-nation map.

The Liberian government’s lock down applied since April 10 to flatten the pandemic’s curve so significantly has been well-beyond anything Americans have experienced, including a national militarily enforced curfew, 3 p.m. – 6 a.m., daily. For example, armed soldiers have deployed to shut down open markets, the country’s lifeblood.

As here, all Liberian schools have been shut for many weeks. (Ebola shut the schools there for well over a year in 2014-2015.)

If halting COVID-19’s progress wasn’t enough, the region’s seasonal rains blew off a large portion of ALC partner Global Cares Mission Academy’s roof in mid-April. (Half of Global Cares 300 students are orphans.)

Ironically, we launched the ALC in June, 2014, the week Ebola came to Monrovia. Then, as now, the campaign stands as a significant player in recovery from the impact of these bone-deep disruptions. Accordingly, we have devoted 2020 ALC donations to:

• Repairing and replacing the Global Cares roof; and
• Securing and distributing basic sanitation and other supplies for Monrovia-area schools to assist their communities in turn, including Educate West Point (in one of the city’s poorest neighborhoods, quarantined en masse by the military in the 2014 Ebola time).

With our donors’ continuing help, Applied Scholastics and the ALC are in Liberia and West Africa to stay; now helping to protect student, family and faculty health; hopefully soon to assist in the meaningful and swift recovery of education region-wide.

All support is welcome through our GoFundMe site: https://www.gofundme.com/f/african-literacy-campaign-2020.

Thank you. So much more to come!

Tim Bowles
May 28, 2020

Applied Scholastics Relief
Educate West Point
Monrovia, Liberia

May 20, 2020

California employers must carry workers’ compensation insurance for on-the-job injuries and job-related illnesses.

California governor Newsom’s May 6, 2020 Executive Order N-62-20 (the order) directs that workers contracting COVID-19-related illness between March 19 and July 5, 2020 are presumed entitled to full work comp coverage, including medical care, temporary disability, permanent disability, supplemental job displacement, vocational rehabilitation, and death benefits.

The presumption applies if the employee worked at a jobsite outside her or his home at the employer’s direction between March 19, 2020 and July 5, 2020 and then tested positive for or was diagnosed with COVID-19 within 14 days.

Employers may dispute the presumption within 30 days of the date the claim is filed with “other evidence” to prove the illness did not occur due to work duties.

The order also confirms that insurance carriers may “adjust the costs of their policies” accordingly, which likely means increased rates.

On May 19, 2020, the California Department of Industrial Relations published FAQs to clarify the diagnosis/testing criteria and to confirm the presumption applies to all workers of “essential” and “non-essential” industries or services.

Employers should consider taking these proactive steps:

• Implement an overall COVID-19 return to work plan.
• Establish and enforce infectious disease control and hygiene safety policies to prevent and reduce workplace exposure to COVID-19.
• Confirm adequate commercial general liability coverage for third-party “communicable diseases” claims, for example the relative of an infected employee asserting the employer is liable for the relative having contracted COVID-19 from that worker in turn.
• Confirm whether policies require employer control over or consent to the settlement of any COVID-19-related claims.
• Seek outside legal advice before settling any COVID-19-related insurance claims.

See also:

• In the Know; New Post-Pandemic Workplace Policies (May 15, 2020)
• The New Normal; Organizing for Post-Pandemic Workplace Revival (April 30, 2020)
• Are We Done Yet?; Workplace Return Planning (April 29, 2020)
• Thinking the Unthinkable; Workplace Return? (April 23, 2020)
• Keep it to Yourself; Essential Workers Must Cover Up and Stay Six Feet Apart (April 16, 2020)
• When the Show Must Go On; Key Protection for an Employee’s COVID-19 Diagnosis/ Symptoms (April 8, 2020)

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

Cindy Bamforth
May 20, 2020