Hunton Employment & Labor Perspectives

California law requires employers to provide employees written wage statements listing gross and net wages earned, hourly pay rates, hours worked, and other employment-related information. (Lab. Code, § 226.) If a claimant demonstrates that an employer has failed to comply with this requirement, the claimant is entitled to an injunction compelling compliance and an award of costs and reasonable attorney’s fees. (Id., subd. (h).)

While the intent of Title III of the Americans with Disabilities Act was to improve equality of access to goods and services offered by places of public accommodation, the Plaintiffs’ bar has seized on the law to recruit serial litigants—also known as “professional plaintiffs” or “paid testers”—to repeatedly sue businesses for minor, technical violations without actually seeking to purchase anything at all. 

As discussed in prior blog posts, here, here, and here, pay equity is a hot topic for employee retention and compliance. This principle of equal pay for equal work has been mandated since the Equal Pay Act of 1963 and reiterated in Title VII of the Civil Rights Act of 1964. More recently, legislators at the federal, state, and local level have increased their focus on pay equity and pay transparency initiatives. Because of this legislative activity, pay equity has also received increased attention from the Plaintiffs’ bar, and in recent years, pay equity lawsuits have been brought with increasing frequency. Against this backdrop, employers face the tough task of navigating a complex patchwork of pay equity laws in order to achieve fair and legally-compliant compensation practices, while ensuring that their compensation decisions can reflect the reality of a workforce with differing job positions, responsibilities, and performance outcomes.

Over the course of the pandemic, California employers have contended with rapidly changing rules on workplace safety. Mask requirements in the workplace have been an especially evolving area, where the rules have not only varied between the federal, state, and local jurisdictions, but were often inconsistent across different state agencies. California has now taken steps, however, to align the state’s new mask mandates for the public as well as in the workplace.

Beginning June 15, 2021, Governor Newsom moved forward with his plan to lift public health restrictions on businesses, including capacity limitations, physical distancing, and face coverings.  In response, Cal/OSHA also has issued new workplace standards for COVID-19 prevention.

Employers with more than 25 employees must provide COVID-19 supplemental paid sick leave to their California employees under a recent law signed by the Governor.  This new law is broader than California’s prior COVID-19 paid sick leave law and, unlike the prior law, also covers employees who telework. The new sick leave entitlement is retroactive to January 1, 2021 and extends until September 30, 2021.

Who Must Provide Supplemental Paid Sick Leave?

SB 95 covers all employers with more than 25 employees. California’s prior COVID-19 sick leave law (Assembly Bill 1867) expired on December 31, 2020, and applied only to private businesses with 500 or more employees.

Since the outset of the COVID-19 pandemic, the employment law landscape has continued to change at a rapid pace.  This includes recent changes to federal, state, and local leave requirements for COVID-19 related sick leave.

Under the Families First Coronavirus Response Act (FFCRA), employers with fewer than 500 employees were required to provide paid sick leave and expanded family and medical leave effective April 1, 2020.  The FFCRA leave requirements expired on December 31, 2020.

In California, the requirement to provide statewide supplemental paid sick leave for COVID-19 related reasons also expired on December 31, 2020.  However, many localities continue to maintain COVID-19 sick leave requirements.  These local laws were enacted to cover employers with 500 or more employees that were not required to provide paid sick leave benefits under the FFCRA and to provide up to 80 hours of sick leave for covered employees.

Due to the novel coronavirus (COVID-19), many San Francisco businesses have closed in order to contain the spread of the pandemic, resulting in declining revenues and widespread business interruption.  These economic conditions have led to employee layoffs across San Francisco.  As San Francisco employers work to restore their business operations in the wake of COVID-19, they should be aware of new rules that may affect how they rebuild their workforce.

In recent weeks, the states have begun to announce strategies for reopening public life and business activities. Just as the shutdown orders took varying forms on a state-by-state basis, it appears the reopening orders will follow a similarly varied and state-by-state approach, creating new challenges for multi-state employers.  However, there are some trends starting to emerge that may help employers piece together a cohesive strategy for bringing their employees safely back to work.

On April 16, 2020, Governor Gavin Newsom issued Executive Order N-51-20, which requires California employers in the food sector industry to provide certain workers affected by the COVID-19 pandemic with up to 80 hours of supplemental paid sick leave.

Employers in California continue to grapple with how to interpret Governor Gavin Newsom’s Executive Order directing all California residents to stay home, except as needed “to maintain the continuity of operations of the federal government critical infrastructure sectors.”  Since the Order came out, the state has issued and updated its list of “Essential Critical Infrastructure Workers” who are exempted from the stay-at-home restrictions for purposes of reporting to work.

In response to the COVID-19 pandemic and in an effort to prevent the spread of the virus, many employers are grappling with the need to immediately shut down operations.  This raises the question whether employers must pay out all wages (including paid time off) when employees are temporarily laid off or furloughed. In California, they might.

No doubt recognizing the unprecedented impact on business, Governor Gavin Newsom issued an Executive Order suspending the notice requirements under the California Worker Adjustment and Retraining Notification Act (WARN Act), Cal. Lab. Code §§ 1401(a), 1402, 1403. The Executive Order suspends existing law that could have otherwise required employers to provide 60 days’ notice before instituting mass layoffs, relocations, or terminations, and could potentially have imposed steep penalties on employers who failed to do so.  Certain notice obligations remain, however, under the Executive Order.

In Corona Regional Medical Center v. Sali, No. 18-1262 (May 3, 2019), the Supreme Court recently dismissed a petition for a writ of certiorari that would have resolved a circuit split as to whether expert testimony must be admissible to be considered at the class certification stage.  As a result, the Ninth Circuit remains one of only two circuits that have ruled workers are not required to submit admissible evidence to support a motion for class certification.  In contrast, the Second, Third, Fifth, and Seventh Circuits have all held that expert testimony must be admissible to be considered at the class certification stage.