Issued on September 22, 2020, Executive Order 13950 prohibits federal contractors from providing any workplace training that “inculcates” in their employees “any form of race or sex stereotyping or race or sex scapegoating.” “The term “race or sex stereotyping” means ascribing character traits, values, moral and ethical codes, privileges, status, or beliefs to a race or sex, or to an individual because of his or her race or sex, and the term “race or sex scapegoating” means assigning fault, blame, or bias to a race or sex, or to members of a race or sex because of their race or sex.”

As of November 21, 2020, all government contracting agencies must include in every contract certain language attesting to this requirement; and federal contractors must also include this language in contracts with their subcontractors and vendors. Employers must also send this notice to their unions and post it in the workplace. Any violation of the executive order risks losing their federal contracts.

Importantly, the Executive Order does not change any employer’s obligations under Title VII of the Civil Rights Act of 1964, including prohibitions against discrimination based on any protected category. Employers can and should still provide employees with training to eliminate the existence of and potential for discrimination in the workplace. However, federal contractors, subcontractors, and vendors must now be careful of the content in the training provided. The Executive Order establishes a reporting hotline for employees to report their employers for violating the Executive Order.

Additionally, the U.S. Attorney General is required to assess the extent to which workplace training that teaches race or sex scapegoating may contribute to a hostile work environment under federal law. The Attorney General and the Equal Employment Opportunity Commission are also directed to issue publicly available guidance to assist employers in better promoting diversity and inclusive workplaces consistent with Title VII. With a presidential election in full swing, it remains to be seen whether this Executive Order will remain in play for the long term, but at the very least will be in effect for the next few months. Continue to look for updates on this ongoing topic.

Action Items

1. Review the Executive Order here.
2. Have diversity and inclusion training content reviewed for compliance.
3. Have contract templates updated for subcontractors and vendors.
4. Provide notice to unions and display posters of the new requirements.
5. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

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.

© 2020 ManagEase

The federal Computer Fraud and Abuse Act (CFAA) prohibits individuals from intentionally accessing a computer without authorization or exceeding their authorized access in certain situations. On September 9, 2020, in Royal Truck & Trailer Sales & Serv., Inc. v. Kraft, the Sixth Circuit Court of Appeal stated the phrase “exceeds authorized access” in the CFAA requires more than individuals’ misuse of information that they were authorized to access. Rather, “exceeds authorized access” refers to things like hacking into systems or files individuals are not authorized to access.

There, employees allegedly emailed confidential and proprietary employer information to their personal emails before they resigned, and deleted data from their employer-provided devices. The employer had policies against use or disclosure of proprietary information and removing software or apps from employer devices. The court stated that even though the employees may have violated employer policies, access to information to which they were authorized in the course of their employment did not rise to the level of a claim under the CFAA. Moreover, violation of employer policies is not a criminal act.

This ruling highlights the need for employers to have employees sign nondisclosure agreements to protect their confidential, proprietary, trade-secret information, so that such an agreement can be enforced if violated.

This ruling aligns with the Second, Fourth, and Ninth Circuits’ interpretation of the CFAA, in opposition to the Sixth Circuit with the First, Fifth, Seventh, Eighth, and Eleventh Circuits who have taken a broader interpretive approach. However, the U.S. Supreme Court is expected to weigh in on this issue in 2021.

Action Items

1. Review confidentiality policies, agreements, and procedures to ensure proper protection of protected company information.
2. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

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.

© 2020 ManagEase

Governor Newsom signed into law AB 1867, which implements supplemental COVID-19 paid sick leave for certain employees who are not covered by the Families First Coronavirus Response Act (FFCRA), and for food sector workers, as follows.

1. Eligibility: Private employers with 500 or more employees; healthcare providers and emergency responders exempt from the federal FFCRA regardless of size; and food sector workers (including delivery drivers) regardless of size. In order to be eligible, employees must leave their residence to perform work for their employer.
2. Leave Amount: Employees are only entitled to the total amount of supplemental paid sick leave below, regardless of any change in employer.
   1. Full-time employees: 80 hours of supplemental paid sick leave; except that firefighters who are scheduled to work more than 80 hours in the two weeks preceding leave shall receive the equivalent amount in supplemental paid sick leave.
   2. Part-time employees: paid sick leave equal to (1) the total number of hours the employee is normally scheduled to work in a two-week period; (2) if variable schedule, 14 times the average number of hours the employee worked each day in the six months preceding the date the covered worker takes supplemental paid sick leave, or 14 times the average number of hours worked over the entire period if the employee has worked fewer than six months for the employer; or (3) if variable hour and working for the employer over a period of 14 days or fewer, the total number of hours the employee has worked for the employer.
3. Usage: Paid sick leave may be used for an employee who is:
   1. Subject to federal, state, or local quarantine/isolation order related to COVID-19;
   2. Advised by a healthcare provider to self-quarantine/isolate due to concerned related to COVID-19; or
   3. Prohibited from working by the employer due to health concerns related to the potential transmission of COVID-19
4. Rate: Supplemental paid sick leave must be paid a rate equal to the highest of the following, and subject to a maximum cap of $511/day or $5,110 in aggregate:
   1. The employee’s regular rate of pay for the last pay period;
   2. The state minimum wage; or
   3. The local minimum wage.
5. Notice Requirements:
   1. Model notice: Employers of non-food sector workers must conspicuously display a model notice provided by the Labor Commissioner, or distribute the model notice electronically.
   2. Pay stubs: Employers must print the amount of available supplemental paid sick leave on wage statements starting the first pay period after September 9, 2020.

Employers who already provide supplemental paid sick leave pursuant to federal, state, or local laws may have such leave counted towards satisfying their leave obligation under AB 1867, so long as time off and pay rate complies with the requirements of AB 1867. However, the amount of supplemental paid sick leave is required in addition to paid sick leave already required by the state of California; except to the extent that employees received supplemental paid sick leave under Executive Order N-51-20.

Additionally, if large employers and employers of healthcare workers already provided supplemental paid leave between March 4, 2020 and September 19, 2020 for qualifying leave reasons, but did not pay the employee using at least the minimum pay rate required for supplemental paid sick leave, the employer may retroactively provide the employee with supplemental pay at the required pay rate, and those hours may count towards the total number of hours required for supplemental paid sick leave.

Supplemental paid sick leave for large employers and employers of healthcare workers is effective as of September 19, 2020. Supplemental paid sick leave for food sector workers is retroactive to April 16, 2020 when Executive Order N-51-20 was implemented. Supplemental paid sick leave expires for all applicable workers on December 31, 2020, or upon expiration of any federal extension of FFCRA, whichever comes later.

Action Items

1. Read the text of the bill here.
2. Review payroll systems to track and incorporate available supplemental leave balances on pay stub.
3. Distribute notice of the supplemental paid sick leave to employees.
4. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

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.

© 2020 ManagEase

On September 17, 2020, Governor Newsom signed AB 685 and SB 1159 into law.  Both pieces of legislation are COVID-19 related.  AB 685 imposes new rapid reporting requirements for COVID-19 cases in the workplace, and SB 1159 expands availability of workers’ compensation coverage for COVID illnesses for certain employees.

AB 685: COVID-19 Reporting. Effective from January 1, 2021 to December 31, 2022, AB 685 requires any employer who receives notice of even potential exposure to COVID to take the following steps within one business day of receipt of the notice:

1. Provide written notice to all employees and employers of subcontracted employees, who were on premises at the same worksite as the individual with COVID-19 exposure, within the infectious period. The written notice should indicate that the individuals may have been exposed to COVID and must be delivered in the manner normally used to communicate employment-related information, such as hand delivery, e-mail, or text message.
2. Provide written notice to the exclusive representative, if any, of the employees, containing the same information required to be reported in the Cal-OSHA Form 300 injury and illness log, regardless of whether or not the employer is ordinarily required to maintain the 300 log.
3. Provide all employees and their exclusive representative any information related to COVID-19 benefits to which the employees may be entitled under federal, state, or local laws. This may include workers’ compensation, COVID-related leave, sick leave, state or federal mandated leave, and anti-retaliation/discrimination protections.
4. Notify all employees, employers of subcontracted employees, and their exclusive representative on disinfection/safety plan(s) the employer will implement, per the Center for Disease Control’s guidelines.

The above reporting requirements do not apply to employees who conduct COVID testing/screening, or provide direct care or treatment to individuals who have tested positive, are seeking confirmation, or are in quarantine or isolation related to COVID, as part of their job duties.

If the number of reported cases meet the definition of a COVID-19 outbreak per the State Department of Public Health, employers have additional reporting obligations to their local public health agency, which must be completed within 48 hours.

AB 979 | January 1, 2021 – Publicly traded companies whose principal executive offices are located in California must have at least one director from an “underrepresented community” on their corporate board by the end of 2021, which number increases by the end of 2022 depending on board size. Note that there is already litigation pending on the legality of this bill.

AB 1281 | January 1, 2021 – The extends California Consumer Protection Act (CCPA) exemption for employee, job applicant, and independent contractor data for one year (i.e., until January 1, 2022).

AB 1512 | September 30, 2020 – Registered private security officers employed by registered private patrol operators, covered by a collective bargaining agreement that states they be paid at least $1 more per hour than the state minimum wage, can be required to remain on the premises during rest periods and to remain on call, and carry and monitor a communication device, during rest periods. The employee must be permitted to restart their rest period as soon as practicable if their rest period is interrupted.