Discussion

In a previous interpretation letter, the Occupational Safety and Health Administration (OSHA) clarified that an employee’s injury resulting from an act of violence is considered work-related and recordable through a broad approach to determining “work-relatedness” at the time of the injury. Here, the driver of a company vehicle, during working hours and traveling on a public roadway between service calls, neared an intersection where a four-car collision occurred due to a wrong-way driver. The wrong-way driver then shot the company driver and stole their company vehicle, fleeing the scene. There was no evidence the company driver provoked the act of violence in any way.

For purposes of determining whether an event is recordable, an injury is deemed work-related if an event in the work environment either caused or contributed to the injury, subject to limited exception. More specifically, work only needs to be a causal factor to the injury. “Work environment” is defined as “the establishment and other locations where one or more employees are working or are present as a condition of their employment.” A rebuttable “geographic presumption” applies to injuries caused by events that occur in the work environment, and are thus considered work-related. This can include injuries from an event at work that is outside the employer’s control.

In this case, the employee was in a work environment because he was driving a company vehicle and was traveling for work between service calls. Work relatedness requires the employee to be engaged in the interest of the employer as a condition of their employment. OSHA also stated that employers cannot be allowed to exclude random acts of violence from their logs of injuries and illnesses. “The issue is not whether the conditions could have, or should have, been prevented or whether they were controllable, but simply whether they are occupational, i.e., are related to work.” Importantly, recording or reporting a work-related injury, illness, or fatality does not mean that the employer or employee was at fault, that an OSHA rule has been violated, or that the employee is eligible for workers’ compensation or other benefits. Recording a case on the employer’s log only indicates that 1) an injury or illness has occurred; 2) the case is work-related; and 3) the case is non-minor. Applying these factors, OSHA determined the shooting injury was work-related and recordable.

Action Items

1. Review the OSHA interpretation letter.
2. Review and audit injury and illness logs for accuracy and compliance.
3. Have appropriate personnel trained on recording requirements.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2023 ManagEase

Discussion

On September 21, 2023, the Equal Employment Opportunity Commission (EEOC) released its Strategic Enforcement Plan (SEP) for fiscal years 2024-2028. The SEP establishes the EEOC’s subject matter priorities to achieve its mission of preventing and remedying unlawful employment discrimination.

Earlier this year, the EEOC published its Strategic Plan for Fiscal Years 2022-2026, which serves as an overarching framework for achieving the EEOC’s mission. The SEP will work together with the Strategic Plan by establishing substantive law enforcement priorities. Notable aspects of the SEP include:

• Targeting discrimination, bias, and hate directed against religious minorities (including antisemitism and Islamophobia), racial or ethnic groups, and LGBTQI+ individuals;
• Expanding the vulnerable and underserved worker priority to include additional categories of workers who may be unaware of their rights under equal employment opportunity (EEO) laws, may be reluctant or unable to exercise their legally protected rights, or have historically been underserved by federal employment discrimination protections;
• Updating the emerging and developing issues priority to include protecting workers affected by pregnancy, childbirth, or related medical conditions, including under the new Pregnant Workers Fairness Act (PWFA) and other EEO laws; employment discrimination associated with the long-term effects of COVID-19 symptoms; and technology-related employment discrimination;
• Highlighting the continued underrepresentation of women and workers of color in certain industries and sectors, such as construction and manufacturing, finance, tech and other science, technology, engineering, and mathematics fields;
• Recognizing employers’ increasing use of technology, including artificial intelligence and machine learning, to target job advertisements, recruit applicants, and make or assist in hiring and other employment decisions; and
• Preserving access to the legal system by addressing overly broad waivers, releases, non-disclosure agreements, or non-disparagement agreements when they restrict workers’ ability to obtain remedies for civil rights violations.

The new SEP also commits the EEOC to supporting employer efforts to proactively identify and address barriers to equal employment opportunity, cultivate a diverse pool of qualified workers and foster inclusive workplaces.

The 2024-2028 SEP was developed in conjunction with input from the public through a series of three public listening sessions, in which the EEOC heard from a total of 35 witnesses, including representatives from civil rights and workers’ rights organizations, unions, employer and human resources representatives, scholars, and attorneys representing plaintiffs and defendants in employment discrimination matters.

Action Items

1. Review the EEOC’s full 2024-2028 SEP here.
2. Ensure workplace policies comply with applicable EEO requirements.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2023 ManagEase

Discussion

The Ninth Circuit Court of Appeals recently affirmed an employer’s duty to comply with the attestations made under the Labor Condition Application (LCA) to pay its foreign national employees during the period of authorized employment that is outlined within the LCA. An LCA is an application filed with the U.S. Department of Labor (DOL) by a U.S. employer on behalf of a foreign national worker who will apply for non-immigrant work visas in the H-1B, H-1B1, and E-3 statuses.

In Persian Broadcast Service Global, Inc. v. Walsh, a former employee filed an administrative complaint with the DOL’s Wage and Hour Division, arguing that his employer failed to pay him the full amount of his wages as specified in the two LCA’s that the employer had filed in connection with his employment. An LCA binds an employer to pay the required wages for the period of authorized employment, as stated within the LCA. Only two exemptions exist which can eliminate an employer’s legal obligation to do so: (1) when an employee is non-productive for personal reasons; or (2) when there has been a bona fide termination of the employment relationship.

In this case, the employer filed the first LCA requesting one full-time “TV producer and reporter” position with an annual salary of $45,000 per year, for a period of two years. The second LCA sought to extend the employee’s work authorization period by an additional two years, at an annual salary of $60,000 per year. Over the course of the employee’s engagement with the company, the employer paid him irregularly and sporadically in amounts between $300 and $2,300. At various points of his engagement, the company indicated to the employee that they could not afford to pay him. However, the employee argued that at no point did he interpret the employer’s comments to be a notice of termination. In all, the employer paid the employee a total of $20,581 for the entire period of his employment spanning four years. Ultimately, the Ninth Circuit said that the employer was responsible for payment of wages outlined under the LCA attestations.

Action Items

1. Pay employees according to the terms of their applicable LCAs.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2023 ManagEase

Discussion

It’s that time of year again! California’s governor had until October 14^th to sign or veto the bills that the state legislature sent to his desk. The employment laws passed this year do not disappoint the tradition of “Shocktober.” The following is a summary of the key bills employers should be aware of. All bills go into effect on January 1, 2024 unless otherwise noted.

ENACTED BILLS

AB 521 | Toilet Facilities at Construction Worksites. In an effort to protect women and nonbinary individuals at construction sites, this bill exempts construction jobsites from the single-user toilet rule, which requires single-user restrooms to be available to all genders. By the end of 2025, the standards board is required to consider adopting regulations that require at least one single-user toilet facility on all construction jobsites, designed for employees who self-identify as female or nonbinary.

AB 594 | Public Prosecution. In addition to the authority already held by the Labor Commissioner to prosecute violations of the Labor Code, this bill gives public prosecutors the ability to prosecute civil and criminal actions for violations of certain provisions of the Labor Code. Prosecution under this bill would be separate from potential recovery under a Private Attorneys General Act (PAGA) lawsuit.

AB 636 | Wage Theft Notice Update; Agricultural Workers Notice. Employers are currently required to provide employees with a wage theft notice pursuant to Labor Code § 2810.5. As of March 1, 2024, this bill amends the required notice to include information about the existence of a federal or state emergency or disaster declaration applicable to the county or counties where the employee is to be employed, and that was issued within 30 days before the employee’s first day of employment, that may affect their health and safety during their employment.

As of March 15, 2024, the bill also requires employers with employees who are authorized to work under an H-2A agricultural visa to include in the Section 2810.5 notice, in Spanish, a separate section describing an agricultural employee’s rights under state law, such as the H-2A visa wage rate, overtime rates, frequency of pay, pay for piece rate workers, rest periods, travel time compensation, employee housing rights, itemized wage statements, sexual harassment prohibitions, workplace safety requirements, improper wage deductions, employee-paid health insurance, rick to sick leave, workers’ compensation coverage, and the right to complain to government agencies and seek advice from collective bargaining representatives. This entire Section 2810.5 notice must be provided to the H-2A visa employee on their first day of work in Spanish and in English upon request.

The Labor Commissioner will provide an updated notice before the deadlines. The revised Section 2810.5 notice can also meet the notice requirements for non-H-2A visa employees.

AB 647 | Grocery Ownership Transfer and Worker Protections. This bill expands existing protections for grocery workers when there is a change in ownership. The protections are expanded to include the purchase or acquisition of a grocery establishment. A grocery establishment is also expanded to include its distribution centers that are used primarily to distribute goods to or from its owned stores. A grocery establishment does not include a retail store that ceased operations for 12 months or more, up from six months. “A successor grocery employer may be the same entity as an incumbent employer when a change in control occurs but the covered employer remains the same.” Importantly, when the sum of both the incumbent and successor grocery employers, immediately prior to the change in control, is less than 300 nationwide, those employers are exempt from the retention rules.

An incumbent grocery employer and any collective bargaining representative must provide the successor grocery employer with information about their employees, which will now include their cell phone number and email address. The bill also adds anti-retaliation protections as well as the ability to bring a lawsuit against an employer for violations of the retention requirements.

AB 933 | Protected Complaints. This bill expands protections for individuals from being subject to defamation lawsuits if they have engaged in privileged “communications”. “Communication” includes factual information related to the individual experiencing sexual assault; an act of workplace harassment or discrimination; failure to prevent an act of workplace harassment or discrimination; aiding, abetting, inciting, compelling, or coercing an act of workplace harassment or discrimination; or an act of retaliation against a person for reporting or opposing workplace harassment or discrimination. If the individual successfully defends a defamation lawsuit involving their protected communication, that individual is entitled to their reasonable attorney’s fees and costs, plus treble damages, punitive damages, or any other relief otherwise permitted by law.

AB 947 | California Consumer Privacy Act (CCPA) Amended. This bill expands the definition of “sensitive personal information” under the CCPA to include personal information that reveals a consumer’s citizenship or immigration status.

AB 1076 | Noncompete Agreements Void. This bill seeks to codify the 2008 ruling in Edwards v. Arthur Andersen LLP, consistent with existing law, which voids noncompete provisions in employment contracts. For previously signed noncompete agreements by employees hired on or after January 1, 2022, employers must notify employees that those agreements are void by February 14, 2024.

AB 1194 | California Privacy Rights Act (CPRA). Under the CPRA, if the consumer’s personal information contains information related to accessing, procuring, or searching for services regarding contraception, pregnancy care, and perinatal care, including abortion services, this bill requires a business to comply with the CPRA’s requirements unless the personal information is used for specified business purposes, is only retained in aggregated and deidentified form, and is not sold or shared. The CPRA requirements restrict businesses from cooperating with a government agency request for emergency access to a consumer’s personal information regarding contraception, pregnancy care, and perinatal care, including abortion services, except that businesses will still have a duty to preserve or retain evidence under California or federal law in an ongoing civil proceeding.

AB 1228 | Fast Food Worker Rights Revised. In 2022, AB 257 enacted significant employer rules for the fast food industry, including a Fast Food Council that would have broad authority. AB 1228 is viewed as a compromise to settle a pending referendum on that law. Going forward, fast food employers of national chains with more than 60 establishments will have a $20/hour minimum wage rate for covered employees as of April 1, 2024. There would still be a Fast Food Council but with less authority than previously envisioned. AB 1228 also does not create joint liability for franchisors and franchisees as the previous law would have. The law will only be in effect through 2029, unless extended by the legislature.

AB 1417 | Mandated Reporting at Long-Term Care Facilities. Existing law requires specified people, known as mandated reporters, to report cases of elder or dependent adult abuse. This bill changes the time a mandated reporter would be required to submit a written report if abuse occurring in a long-term care facility is caused by another resident of the facility with dementia, and there is no serious bodily injury, to be within 24 hours, rather than two hours. The written report must be submitted to the long-term care ombudsman and the local law enforcement agency. In all other instances at a long-term care facility, immediately or as soon as practically possible, but no longer than two hours, the mandated reporter would be required to submit a verbal report to the local law enforcement agency, and to submit a written report within 24 hours to the long-term care ombudsman, the local law enforcement agency, and the corresponding state licensing agency.

SB 2 | Concealed Carry Authorization from Commercial Businesses. In addition to other locations, this bill prohibits people with concealed carry firearms licenses from doing so on any privately owned commercial establishment that is open to the public, unless the operator of the establishment clearly and conspicuously posts a sign at the entrance of the building or on the premises indicating that licenseholders are permitted to carry firearms on the property.

SB 497 | Presumption of Retaliation. This bill creates a rebuttable presumption of retaliation if an employer takes adverse action against an employee within 90 days following certain protected activities, such as making a claim for unpaid wages; bringing a claim or testifying in a proceeding subject to PAGA; or seeking to enforce their rights under the state’s equal pay law.

SB 525 | Minimum Wage Increase for Healthcare Workers. This bill sets a state standard for minimum wage rates for healthcare workers, including those who provide patient care, health care services, or services supporting the provision of health care (e.g., janitors, housekeeping staff, groundskeepers, guards, clerical workers, administrative employees, food service workers, medical billing personnel, and laundry workers). Minimum wage rates are set to go into effect, starting June 1, 2024, as follows:

• Healthcare facility employers with more than 10,000 workers, and dialysis clinics – $23/hr. in 2024, $24/hr. in 2025, and $25/hr. in 2026.
• Hospitals with a “high governmental payor mix” (Medi-Cal and Medicare patients), and rural independent hospitals – $18/hr. in 2024, with 3.5% increases annually, up to $25/hr. by 2033.
• Community clinics – $21/hr. in 2024, $22/hr. in 2026, and $25/hr. in 2027.
• Other covered health care employers – $21/hr. in 2024, $23/hr. in 2026, and $25/hr. in 2028.

County owned, affiliated, or operated healthcare facilities have delayed compliance to January 1, 2025.

SB 553/SB 428 | Workplace Violence Prevention Standard. This bill requires covered employers to implement a workplace violence prevention plan (as part of their Injury and Illness Prevention Plans) by July 1, 2024, subject to limited exception. There are also recordkeeping and training requirements. The Cal/OSHA Standards Board must adopt applicable standards by the end of 2026. Starting on January 1, 2025, this bill also permits employers to seek temporary restraining orders on behalf of their workers in response to harassment, or a threat of or actual workplace violence.

SB 616 | Paid Sick Leave Increased. This bill increases the state’s minimum paid sick leave entitlement from 3 days/24 hours to 5 days/40 hours per year. Usage may be limited to 5 days/40 hours and accrual may be capped at a minimum of 10 days/80 hours. The bill also preempts local paid sick leave laws on the topics of no payout on termination, reinstatement of accrued paid sick leave on rehire, lending advanced paid sick leave accruals to employees, calculation of paid sick leave, employee notice of paid sick leave, and timing of payment of paid sick leave.

SB 700 | Marijuana Protections. Except when permitted during a background screen, this bill prohibits employers from inquiring about job applicants’ prior marijuana use. The bill does not preempt federal or state law requiring drug testing for controlled substances, and does not apply to the building and construction industries. Employers may still maintain drug-free workplace policies.

SB 723 | Rehiring Displaced Workers. Existing Labor Code § 2810.8 includes rehiring requirements for those in the hospitality and business service provider industries who were laid off during the COVID-19 pandemic. This bill expands application of the rehiring requirements to include a presumption that covered employees who were separated from employment after March 4, 2020 due to a lack of business, reduction in force, or other economic, nondisciplinary reason were due to a reason related to the COVID-19 pandemic, unless the employer establishes otherwise by a preponderance of the evidence. This means that former employees who meet this criteria must be offered re-employment when positions are available for which they qualify, in addition to other notice and recordkeeping requirements. This law will remain effective through December 31, 2025.

SB 848 | Leave for Reproductive Loss. This bill requires private employers with five or more employees, and public employers, to provide 5 days’ unpaid leave for reproductive loss (i.e., failed adoption, failed surrogacy, miscarriage, stillbirth, or an unsuccessful assisted reproduction) within three months of the loss event or following the conclusion of other leave then being taken. Leave need not be taken consecutively. For multiple reproductive loss events, total leave is not required to exceed 20 days in a 12-month period. Employees who have worked for at least 30 days prior to the need for leave are eligible.

VETOED BILLS

While that may seem like a daunting list, you may be wondering what got vetoed. Here are a few of those vetoed bills worth noting.

• AB 575 | Paid Family Leave (PFL) Expansion. This bill would have expanded PFL benefits to an employee taking leave to bond with a minor child within one year of an individual’s assumption of responsibilities for the child in loco parentis.
• AB 1356 | WARN Act Expansion. This bill would have extended the advance layoff notice required under the WARN Act from 60 days to 75 days. “Covered establishment” would have also covered a group of locations including any facilities located in the state.
• SB 799 | Unemployment Benefits for Striking Workers. This bill would have extended unemployment benefits to employees who leave work because of a trade dispute.
• SB 403 | Caste Protections. The bill would have included “caste” as a classification protected against discrimination under FEHA. The Governor vetoed the bill stating that caste discrimination is already prohibited through the current list of FEHA protected categories.
• SB 731 | Return-to-Work Notice. This bill would have required employers to provide remote employees with at least 30 days’ advance notice that they will be required to return to work in person.
• SB 725 | Extended Grocery Worker Protections. This bill would have required a successor grocery employer to provide a dislocated grocery worker allowance equal to one week of pay for each full year of employment if the successor grocery employer did not hire an eligible grocery worker following a change in control or did not retain them for at least 90 days following the change in control.
• AB 524 | Family Caregiver Status Classification. This bill would have added “family caregiver status” to the list of categories protected against discrimination under FEHA.

Action Items

1. Review applicable bills.
2. Have employer policies updated for compliance.
3. Update required notices.
4. Prepare for minimum wage increases.
5. Update pre-employment processes regarding marijuana inquiries, if applicable.
6. Review noncompete agreements with legal counsel and provide required void notice.
7. Update paid sick leave policies and accruals for compliance.
8. Have appropriate personnel trained on updated requirements.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2023 ManagEase