28 Apr

April 2021 California HR Legal Updates

Posted at

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Reminder of Local Right of Recall Ordinances

Update Applicable to:
Employers operating hotels and commercial properties within the cities of Long Beach, Los Angeles, Oakland, Pasadena, San Diego, and Santa Clara.

What happened?
Employers within several California cities will need to keep local ordinance requirements in mind when returning to normal business operations over the coming months.

What are the details?
The following table is provided by Jackson Lewis in this article.

CityCovered Employers
Long Beach· Commercial property employers that provide janitorial services (25 or more employees)
· Hotel employers (25 or more employees)
 Los Angeles· Airport employers
· Commercial property employers that employ 25 or more janitorial, maintenance, or security service workers.
· Event center employers · Hotel Employers
Oakland· Airport hospitality employers
· Event center employers
· Hotel employers
· Restaurant employers (more than 500 employees)
Pasadena· Hotel employers
San Diego· Commercial property employers
· Event center employers
· Hotel employers
Santa Clara· Building service employers
· Food service employers
· Hotel employers

Each city will link to an article covering the ordinance in more detail.

What do employers need to do?
Covered employers should follow the procedures outlined in the ordinances to remain compliant.

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California Passes State-wide Right to Recall

Update Applicable to:
California employers operating in specific industries, see list below.

What happened?
On April 16, 2021, Governor Newsom signed SB 93 into law, creating Labor Code section 2810.8.

What are the details?
SB 93 was immediately effective upon its signing on April 16, 2021, and remains in effect until December 31, 2024. SB 93 does NOT apply to every California employer. SB 93 applies generally to the hospitality, travel, and business services sectors. Specifically, SB 93 applies to:

  • Airports (including airport hospitality operations and airport service providers);
  • Building services (janitorial, building maintenance, or security services);
  • Certain hospitality enterprises of a certain size (hotel, private club, event center, airport hospitality operation, airport service provider, or the provision of building services to office, retail, or other commercial buildings); and
  • Event centers (50,000 square feet or 1,000 seats that are used for public performances, sporting events, business meetings).

Employers in these industries (or on the fringes) are advised to consult with their employment counsel to review the detailed language of SB 93 about potential exclusions or requirements for coverage. For example, a private club – although generally listed above – is required to comply with SB 93 only if it, “operates a building or complex of buildings containing at least 50 guest rooms or suites of rooms that are offered as overnight lodging to members.”

SB 93 does not apply to all laid-off employees. SB 93 applies only to, “Laid-off employee … whose most recent separation from active service was due to a reason related to the COVID-19 pandemic….”

The term, laid off “due to a reason related to the COVID-19 pandemic,” is defined broadly and deemed to include any form of separation from employment related to “a public health directive, government shutdown order, lack of business, a reduction in force, or other economic, non-disciplinary reason due to the COVID-19 pandemic.”

To be eligible under SB 93, the laid-off employee also must have been “employed by the employer for 6 months or more in the 12 months preceding January 1, 2020.”

Once a covered business starts to reopen, within five business days of re-opening the positions, the business must offer the “laid-off employees” all job positions for which the laid-off employees are qualified. The positions must be those that were eliminated due to “a reason related to the COVID-19 pandemic.” According to SB 93, “A laid-off employee is qualified for a position if the employee held the same or similar position at the enterprise at the time of the employee’s most recent layoff with the employer.” SB 93 states that notice of reopening must be given to the employees “…in writing, either by hand or to their last known physical address, and by email and text message to the extent the employer possesses such information.” If more than one employee is entitled to preference for a position, the employer shall offer the position to the laid-off employee with the greatest length of service based on the employee’s date of hire for the enterprise.

Note that for SB 93, a business day is defined to mean any calendar day except Saturday, Sunday, or any official state holiday. 

SB 93 does NOT create a private civil right of action for former employees, it does allow those employees to file a claim with the State Labor Commissioner.

Article covering SB 93 can be found here, here, and here.

What do employers need to do?
Covered employers should review the needed notice procedures and update their workplace policies to reflect the new requirements.

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San Francisco Mandates PPE Requirements

Update Applicable to:
The Ordinance covers:

  • Establishments primarily engaged in the retail sale of food (grocery stores, supermarkets, convenience stores, restaurants, cafes, etc.);
  • Establishments primarily engaged in the retail sales of medication, pharmaceutical, or medical supplies (drug stores, pharmacies, etc.); and
  • On-demand delivery services, defined as online or mobile applications that offer delivery from no fewer than 20 restaurants, grocery stores, drug stores, or other essential businesses (Postmates, Uber Eats, Grubhub, Doordash, and the like).

What happened?
The San Francisco Board of Supervisors passed the Grocery Store, Drug Store, Restaurant, and On-Demand Delivery Services Employee Protections ordinance, requiring San Francisco employers to provide additional health and scheduling protections to employees during the COVID-19 public health emergency.

What are the details?
Any person who, in a particular week, performs at least two hours of work in the City and County of San Francisco. Also, On-Demand Delivery Services drivers and shoppers are considered “employees,” regardless of how they are classified. What this means is that independent contractors of On-Demand Delivery Services are covered under this ordinance.

Covered Employers have five main requirements under the ordinance, with the most significant affecting On-Demand Delivery Services:

  1. Provide employees with hand sanitizer, soap, and water, or effective disinfectant in the workplace. On-Demand Delivery Services Employers must provide, or reimburse, employees for the reasonable cost of purchasing necessary hand sanitizer, disinfecting cleaning supplies, or any necessary personal protective equipment (PPE), such as gloves and masks.
  2. Provide a Social Distancing Protocol to each employee who works at a facility and post the Social Distancing Protocol in each facility. On-Demand Delivery Services Employers must provide the Social Distancing Protocol in a manner calculated to reach employees, whether by electronic communication or posting conspicuously on Employers’ internal platforms.
  3. Offer employees who make deliveries the option of a “no-contact” delivery method where feasible with detailed guidance on how to safely make both in-person and no-contact deliveries.
  4. Continue to regularly disinfect high-touch surfaces. On-Demand Delivery Services Employers must require delivery drivers to regularly disinfect high-touch surfaces in their vehicles and compensate them for the time spent doing so.
  5. When reasonably feasible, approve an employee’s request to cancel scheduled work for any reason for which the employee may otherwise use leave under San Francisco’s Paid Sick Leave ordinance and allow eligible employees to use available accrued paid sick leave, FFCRA Emergency Paid Sick Leave, San Francisco’s Public Health Emergency Leave, or reschedule the work.

An employer may not retaliate against an employee for requesting the protections contained in this ordinance. Doing so will potentially result in legal awards to the Employee including:

  • Reinstatement,
  • Backpay, and
  • Other legal and/or equitable relief.

The ordinance will be lifted on the 61st day following enactment, or when the Public Health Emergency is lifted, whichever occurs first.

The ordinance includes a workplace poster requirement. The required workplace poster can be found here.

An article covering exactly what was updated can be read here.

What do employers need to do?
San Francisco employers will likely need to update their workplace compensation practices to stay in compliance with this ordinance.  

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Update: SB-95 FAQ Changes

Update Applicable to:
California Employers subject to SB-95.

What happened?
The Division of Labor Standards Enforcement (DLSE) has updated its FAQs to answer more questions commonly asked regarding SB-95.

What are the details?
An article covering exactly what was updated can be read here.

The FAQ can be found here.

What do employers need to do?
Employers impacted by SB-95 who have general questions regarding the bill should review the FAQ.

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Update: San Francisco Hazard Pay Notice Released

Update Applicable to:
San Francisco Employers subject to the COVID-Related Hazard Pay Ordinance.

What happened?
The San Francisco Office of Labor Standards Enforcement has released the official notice for the COVID-Related Hazard Pay Ordinance.

What are the details?
The City of San Francisco, California has released their COVID-Related Hazard Pay Ordinance notice. This new notice, effective March 22, 2021, reflects that grocery and pharmacy retail stores with at least 500 employees worldwide, including at least 20 employees in San Francisco, must pay Hazard Pay to all employees whose base wage is less than $35 per hour. These requirements also apply to janitorial and security contractors of any size at covered grocery and pharmacy retail stores. The poster revision date is April 7, 2021.

The required notice can be found here.

What do employers need to do?
Employers impacted by SB-95 who have general questions regarding the bill should review the FAQ.

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