What California Employers Need to Do with the new California Privacy Rights Act

What California Employers Need to Do with the new California Privacy Rights Act

The California Privacy Rights Act (“CPRA”) will be enforced starting on January 1, 2023, and will expand privacy rights under the California Consumer Privacy Act (“CCPA”). The California Consumer Privacy Act [Prop 24 passed with California voters in November 2020] provides California employers some exemptions with respect to employment-related personal information, when that personal information is collected and only used in connection with the person’s role as an employee, applicant, dependent or spouse of an employee, beneficiary, independent contractor or owner.  The CPRA expands upon and amends the CCPA, which has led to it being known as CCPA 2.0. However, it was on the ballot officially as Prop 24.

It appears the CCPA does not extend certain consumer rights like the CPRA, including the right to access or delete personal information, to employees.  As reported in Law360.com, businesses subject to the CPRA will have to comply with obligations related to the processing of employee data.

What Kind of Data Breach Can I sue a Business for – OK Get Sued for under the CCPA?

You can only sue businesses under the CCPA if certain conditions are met. The type of personal information that must have been stolen is your first name (or first initial) and last name in combination with any of the following:

1. Your social security number
2. Your driver’s license number, tax identification number, passport number, military identification number, or other unique identification number issued on a government document commonly used to identify a person’s identity
3. Your financial account number, credit card number, or debit card number if combined with any required security code, access code, or password that would allow someone access to your account
4. Your medical or health insurance information
5. Your fingerprint, retina or iris image, or other unique biometric data used to identify a person’s identity (but not including photographs unless used or stored for facial recognition purposes)

This personal information must have been stolen in nonencrypted and nonredacted form.

CCPA Applies to Employers in California

 The CCPA does not provide a blanket exemption for employment-related data. Employers are still required to adequately safeguard the personal information they collect and provide a notice of processing at or prior to the point of collecting the personal information to the individual employee.  A practical example will be a Notice to Employees that we collect and maintain your pay and time data, health information, sick time and vacation data, as well as CaliforniaChoice and Cal-COBRA information, Banking information (for direct deposits) and retirement information for 401K plans, etc.

Employee data under the CPRA

Employers must prepare and provide a privacy notice to an employee and/or job applicant at or before the time personal information is collected.

This notice must include:

(1) the categories of sensitive personal information,

(2) whether that sensitive personal information is sold or shared, and

(3) the length of time the employer intends to retain each category of sensitive personal information.

If an employer allows a third party (such as Human Resources management software, PeopleSoft, Kronos, QuickbBooks, Microsoft [Think of Outlook collecting name, address, personal cell phone, and emails] or Clio) to collect personal information on its behalf, the CPRA requires that the third-party collector provides notice at collection.  Along with providing notice that includes the consumer’s rights, who is collecting the data, and how and for what purpose such data is being collected, sold, used, or shared, an employer must also include the categories of all third parties that the employer discloses consumer personal information to, or that the employer allows the collecting consumer personal information.

Unless they can rely on an exemption, employers must honor consumer requests, such as the right to delete, know of, correct, access or opt out of both the sale and sharing of personal information, and limit the use and disclosure of sensitive personal information. In addition, employers must ensure they meet the requirements for data portability and non-discrimination with regard to consumer requests.

Businesses are now being required to enter into a data processing agreement with their vendors, all of them including to agency [overload it seems] require service providers, contractors, or other third parties that may have access to its personal information. This requirement applies regardless of the types of personal information processed, employment-related or otherwise. The data processing agreement must also include the following provisions:

1. Identify the limited and specific business purposes and services for which the vendor will process personal information as set forth within the contract.
2. Prohibit retaining, using or disclosing the personal information for any purpose other than those specified in the contract.
3. Prohibit retaining, using or disclosing the personal information received for any commercial purpose other than the business purposes specified in the contract.
4. Prohibit retaining, using or disclosing the personal information outside of its direct relationship between the vendor and the business and prohibit retaining, using or disclosing the personal information for any purposes other than the business purposes specified in the contact.
5. Require that the vendors will comply with the applicable obligations under the CPRA and provide the same level of privacy protection as required.
6. Require that the vendor notify the business if the vendor can no longer comply with the obligations under the CPRA.
7. Grant the business the right to take reasonable and appropriate steps to ensure that the vendor uses the personal information in a manner consistent with the business’s obligations under the CPRA.
8. Grant the business the right to take reasonable and appropriate steps to stop and remediate unauthorized use of personal information.
9. Require the business to inform the service provider or contractor of any consumer request made pursuant to the CCPA that they must comply with, and provide the information necessary for the service provider or contractor to comply with the request.

In addition to the requirements listed above, a business must include the following provisions:

1. prohibit the sale and sharing of personal information; and
2. require notification of any contractors engaged, and mandate that the contractors be contractually bound to the same processing obligations.

Businesses must safeguard the personal information against unauthorized disclosures and provide employees with the right to limit the use and disclosure of sensitive information.

Businesses are also required to conduct due diligence assessments, such as audits, on their vendors to ensure that they can process personal information in compliance with the CPRA.

What should employers do to get ready for the CPRA

Businesses should begin to implement the below recommended actions ASAP. Right now, the California Office of the Attorney General will be up in your grill with violations, and next, God Forbid, a new agency is being created. Imagine your client, or worse, your office, being the poster child for a new agency looking to draw blood on some hapless company that forgot to notify QuickBooks (Intuit), Microsoft or the local Schools First Federal Credit Union of its new requirements! Ouch!

This new law creates a new dedicated privacy agency, the California Privacy Protection Agency, to handle enforcement. It will be governed by a five-member board appointed by the Governor (appointing the Chair and one other member), the Attorney General, the Senate Rules Committee and the Speaker of the Assembly. These appointees must have expertise in the areas of privacy, technology and consumer rights (with some restrictions to help ensure that they remain free from external influence).  How we measure “experience” and ensure they are “free from external influence” is still up for debate.

Board members cannot serve for more than eight (8) consecutive years and may be removed during that time by their appointing authority. For two (2) years after they leave the agency, they are also unable to work for any person or organization that currently has an issue before it or was subject to an enforcement action during the five-year period preceding the board member’s appointment.  That does not restrict them from doing consulting work or working directly for a company that has not yet been audited but maybe “on the radar” which to us, leaves room for abuse.

Headed by a board-appointed executive director, this agency will be partially funded by enforcement actions with any administrative fines assessed or settlement proceeds going directly into the Consumer Privacy Fund. It will also receive an annual $10,000,000 (adjusted annually) from the General Fund.  Your tax dollars at work.

Employers Must Learn and Manage their Data

Rather than yell at Junior sitting on the couch until 4 AM playing Call of Duty and Madden NFL 2023 4 AM you need to hire him as your new data consultant. If the terms Data wrangling (has nothing to do with cattle wrestling), Identity transform (has nothing to do with sex changes) and reusable transformation library, are all foreign to you, whip out your American Express Card as you and other businesses are going to have to pay to get complaint quickly. We never thought matching attributes (@*) and nodes would make its way into employment law.

To stay compliant with the CPRA, a business should know and understand what type of employment-related personal information it collects and processes. This can be accomplished by completing a data mapping exercise.  This is not like Geocaching or even mapping a trial hike in Big Bear, this is some advanced stuff!  See this Data Mapping explanation and a chart as an example, courtesy of Wikipedia..

In addition to data mapping [some vendors include – Manta, TerraTrue and Clarip No I have not been paid] , companies should review and update existing privacy impact and cybersecurity assessment programs. This step alone will provide useful insight on the type of data a business collects and processes, which could help remediate any privacy and security compliance gaps.

Hire Lawyers and Consultants and Understand the CCPA and CPRA

 What was that last word of advice? Yes, hire lawyers and experts and vendors!  Oh my! Businesses must gain a clear understanding of the CPRA consumer rights and their interaction with the CCPA. As the CPRA consumer rights are broader than the CCPA, it should be easier for larger companies to comply. Some examples of the CPRA’s requirements which allow consumers to request that a business (including a law firm):

1. Correct personal information that is inaccurate;
2. Limit its use of their sensitive personal information;
3. Allow access to information about automated decision-making; and
4. Provide an option to opt-out of such automated decision-making technology.

The rest of the consumer rights are similar to those found under the CCPA but are expanded or modified.  California companies should also understand its obligations to respond and fulfill any consumer requests, whether or not they seem ridiculous.

The CPRA provides a business with exemptions that, if applicable, could exempt a business from having to fulfill a consumer request. Unlike the CCPA, which allows for its exemptions to be used only for certain consumer rights, the CPRA allows the use of the exemptions toward any of the consumer rights.

Along with understanding consumer rights, a business should also understand the new rights of its employees with respect to their personal information. So by creating or updating your business plan companies can manage the new employee rights and consumer requests obligations. A business should also incorporate and/or update its retention schedule for employment-related personal information – most are currently 7 years – and employee privacy notices to include CPRA notice requirements.

Review Vendors Agreements and Policies

California companies need to know what information vendors are collecting and processing. Each vendor agreement should include the appropriate data processing and information security terms and obligations.  However, the law remains unclear on what smaller companies and firms, like us, can do if the necessary vendor fails to comply with its requirements. It appears we may all be entering the employee leasing business model where “everyone gets sued.”  Microsoft has a data breach, so Company A (vendor) and Company B (service provider), and Company C (actual company with employees) all get sued.

 

We would also suggest to our California companies consider only doing business with US companies since defendants like Shopify (we are Canadian yeah? You bet ‘cha – United States District Court Judge Edward Chen stated that the US-based court does not have jurisdiction over the two entities since they are headquartered in Canada and France) they seem to avoid liability and a potential source of indemnification for your business under these scenarios.  Comment dire –  que c’est nul!

Review existing policies.

Finally, we suggest all companies review your employee handbooks, operation manuals, information technology policies and procedures, in particular those relating to the use of personal devices for work purposes, lest they be in the cross-hairs of California.

In today’s modern world, employees may conduct certain business functions on their personal devices, via certain applications like Slack, Outlook, Teams, Zoom, and even QuickBooks (Bill! Bill! Bill!). This can be considered “collecting and processing personal information” and needs to be addressed now or at the latest in 2023 when this legislation takes effect.

If you have any questions about this article, Employee handbooks (we write them too), or have issues with unpaid wages, commissions, company charges to your wages, business expenses, off-the-clock work, or any issues with your pay at your current or former employer, please feel free to contact:

Richard E. Quintilone II, Esq. Kyle Gallego Esq. or Jeffrey T. Green, Esq.

Quintilone & Associates 22974 El Toro Road, Suite 100 Lake Forest CA 92630

Phone 949.458.9675 619.709.7999 Fax 949.458.9679 Email req@quintlaw.com; kjg@quintlaw.com or jtg@quintlaw.com web www.quintlaw.com

California Supreme Court to Address Split on Alleged PAGA Manageability

On June 22, 2022, the California Supreme Court granted review in Estrada v. Royalty Carpet Mills, Inc. (2022) 76 Cal.App.5th 685, to resolve a split of authority in separate Court of Appeal regarding whether trial courts can strike allegedly unmanageable Private Attorneys General Act (“PAGA”) claims. The Court will hopefully hear arguments in 2023, but with new COVID, Monkeypox or other pandemic concerns – may not. As a quick note, all claims and cases are hard to try. PAGA claims involved workers, pay, and working conditions, nothing fancy other than the software used to track time and other means of proving off-the-clock work and Labor Code violations. It can and will be tried. Just imagine if the medical malpractice or construction defect industry threw up its hands and said “Judge it is just too  hard to manage this CD case [some have over 10 experts per side], so 200 homeowners can go pound sand!”  Yeah right. Nice try defense bar.

In Wesson v. Staples the Office Superstore LLC (2021) 68 Cal.App.5th 746, the 2nd District held that “courts have inherent authority to ensure that PAGA claims can be fairly and efficiently tried and, if necessary, may strike claims that cannot be rendered manageable.” Id. at 756. Drawing on principles from class actions and other representative actions, the court explained that “[i]n general . . . a need for individualized proof pertaining to a very large number of employees will raise manageability concerns.” Id. at 771. (Click here to learn about the Wesson decision.)

We believe Wesson is limited to its own unusual set of facts. In Wesson the trial court felt sorry for the poor defendant (Staples) and claimed [1] the case could not be fairly [Fair to who?] and efficiently tried and the Court had the authority to strike an unmanageable claim, because at the time case law provided for courts to consider the manageability of representative claims in other contexts and PAGA claims involved “comparable or greater” manageability concerns [read between the lines “I do not want to try this case”]; [2]-The employer was entitled to a fair opportunity to litigate available affirmative defenses [we have heard this before – which means they want to put every single class member, claimant or aggrieved employee on the stand for hours] which a manageability assessment had to take into account, because “due process” required a fair opportunity to present a defense; and [3]-[probably the most important] the employee’s lack of cooperation with the trial court’s manageability inquiry stymied efforts to proceed, striking the PAGA claim, which alleged misclassification, as unmanageable was not error.  Misclassification cases are their own “breed” and trying them is inherently difficult. Read the opinion, the plaintiffs did no favors for themselves or the employees to advance the case, and appealed a bad set of facts, which we have been taught over and over again, “Bad facts make bad law.”

Conversely, in Estrada, the 4th District [far more superior Court in intelligence, wit, and good-looking justices] held that “a court cannot strike a PAGA claim based on manageability.” Estrada, 76 Cal. App. 5th at 697. While Estrada also expressed concern about unmanageable claims, it explained that where claims involve “hundreds or thousands of alleged aggrieved employees, each with unique factual circumstances,” the court may render a trial manageable by limiting the presentation of evidence and witnesses, but not by striking or limiting the claims. Id. at 713. Richard Quintilone II Esq. already posted about Estrada here. We have had only one less experienced lawyer argue Wesson defeats manageability [and our case is not hard to manage] and no other quality defense firm has advanced such a motion on facts that diverge from misclassification.

The California Supreme Court is supposed to resolve this split, but the order granting review gives little indication of which way the Court may rule other than pro-employee since it has done so consistently in the past 3 years. While inexperienced defense-only firms and lawyers wax poetic about that the Court denied review of Wesson in December 2021, get real, the justices were simply busy with the holidays. The Court denied a request to depublish Estrada, so as the fans of Game of Thrones know it- Winter is coming.

Again, the Supreme Court will have to take up the split and until then Trial courts are free to rely upon Estrada. California Rules of Court Rule 8.1115. Citation of opinions (2022)  Wesson is clearly a poorly reasoned decision and limited to its misclassification facts. Click our prior Quintilone & Associates Post to read our analysis of Estrada.

If you have any questions about this article, Employee handbooks (we write them too), or have issues with unpaid wages, commissions, company charges to your wages, business expenses, off-the-clock work, or any issues with your pay at your current or former employer, please feel free to contact:

Richard E. Quintilone II, Esq. Kyle Gallego Esq. or Jeffrey T. Green, Esq.
Quintilone & Associates
22974 El Toro Road, Suite 100
Lake Forest CA 92630
Phone 949.458.9675
Fax 949.458.9679
Email req@quintlaw.com; kjg@quintlaw.com or jtg@quintlaw.com web www.quintlaw.com

Cal/OSHA Revises COVID-19 Regulations Again

 Cal/OSHA Revises COVID-19 Regulations Again

The California Department of Public Health (“CDPH”) and California Division of Occupational Safety and Health (“Cal OSHA”) made some important revisions to California’s definition of  “close contact” and to the expected 2-year extension of California’s COVID-19 regulations. The new Cal/OSHA regulations revise COVID-19 Regulations impacting Close Contact, Square Footage, and the 6 Foot/15 Minute Rule.

Close Contact Defined

The CDPH changed the definition of “close contact” via an immediately effective order, which will change enforcement for both large and small workplaces in California.

The CDPH website states:

“Close Contact” means the following:

1. In indoor spaces 400,000 or fewer cubic feet per floor (such as home, clinic waiting room, airplane etc.), a close contact is defined as sharing the same indoor airspace  for a cumulative total of 15 minutes or more over a 24-hour period (for example, three separate 5-minute exposures for a total of 15 minutes) during an infected person’s (confirmed by COVID-19 test or clinical diagnosis) infectious period.
2. In large indoor spaces greater than 400,000 cubic feet per floor (such as open-floor-plan offices, warehouses, large retail stores, manufacturing, or food processing facilities), a close contact is defined as being within 6 feet of the infected person for a cumulative total of 15 minutes or more over a 24-hour period during the infected person’s infectious period.

Spaces that are separated by floor-to-ceiling walls (e.g., offices, suites, rooms, waiting areas, bathrooms, or break or eating areas that are separated by floor-to-ceiling walls) must be considered distinct indoor airspaces.

Infectious Period is defined as:

• 1. For symptomatic infected persons, 2 days before the infected person had any symptoms through Day 10 after symptoms first appeared (or through Days 5–10 if testing negative on Day 5 or later), and 24 hours have passed with no fever, without the use of fever-reducing medications, and symptoms have improved, OR

2. For asymptomatic infected persons, 2 days before the positive specimen collection date through Day 10 after a positive specimen collection date (or through Days 5–10 if testing negative on Day 5 or later) after specimen collection date for their first positive COVID-19 test.

For the purposes of identifying close contacts and exposures, infected persons who test negative on or after Day 5 and end isolation are no longer considered to be within their infectious period. Such persons should continue to follow CDPH isolation recommendations, including wearing a well-fitting face mask through Day 10.”

We are not talking about “sharing the same indoor airspace” as an infected person for 15 minutes anymore. This “indoor airspace” definition led to litigation, confusion and complete disagreement as how to reglaute employees. Many employers where completely confused due to how it deviated from the prior “6-foot/15 minutes” rule. “Indoor airspace” was undefined and in this author’s opinion  ikely unconstitutional and a violation of the Administrative Procedures Act. What does that mean? More workers compensation liability for insurance carriers and employers and, of course, ore lawsuits against the employer, claiming employees were forced to work in close contact and in an unsafe environment.

California workplaces will be separated by their cubic footage, regardless of walls, windows or sealed doors that close with airtight HEPA filers.  Workplaces larger than 400,000 cubic feet (Costco, Target, Wal-Mart) will utilize the original definition of a close contact (6 feet/15 minutes) where airspaces smaller than 400,000 cubic feet (Everyone else) will keep the more recent definition of anyone sharing the same “indoor airspace.” Notably, CDPH’s order expressly notes that where “floor-to-ceiling walls” separate portions of a workplace, those areas must be counted separately for the purposes of determining whether the workplace is 400,000 cubic feet.

Larger California Employers Win Smaller Ones Get Screwed

Large workplaces appreciate the state getting out of their business. With the biggest lobbyist, and law firms, who is surprised? In contrast with rest of us who are left litigating over this mess, the unknown “indoor airspace” standard, California’s largest warehouses, airplane hangars, or manufacturing spaces can now return to the much more practical standard of 6 feet/15 minutes to identify close contacts.  This change will potentially reduce costs, the scope of obligations toward testing and masking after exposures in the workplace.

For the rest of us, my law firm office in Lake Forest included, the employer must look at whether each area inside that workplace meets the requirement, or if it is a separate airspace due to walls or similar barriers. For that reason, employers who are close to the 400,000 cubic feet limit will need to do some careful measuring — and work with contractors and lawyers – that’s right hire more lawyers! (Love it!) and see if the workspaces qualify under California’s draconian requirements, including whether it is actually separate spaces and therefore must continue under the present “indoor airspace” definition.  Get out the checkbook Ms. Bookkeeper, we got some spending to do.

The Definition of the Same Indoor Airspace is Vague and Ambiguous

California employers have been objecting to the “same indoor airspace” standard earlier this year and the massive expansion of who qualifies as a “close contact” was introduced just after COVID was over. Further the standard was so difficult to understand as compared to the prior 6-foot/15-minute rule.  The ridiculousness of the standard in large workplaces where an employee might never be within 30 feet of a coworker, maybe because they have an enormous 30 x 30-foot office – would apparently now be a “close contact” triggering (1) testing, (2) quarantining (aka stay at home and not work) and (3) litigation – WCAB claims or otherwise. Thank God they backed off the big employers, hopefully, the smaller ones will get reasonable regulation soon, but that appears unlikely.

Cal/OSHA Responds to Employers’ Objections to the 2-Year Order

What do agencies do to make themselves stay around longer and feel important about themselves? You guessed it – make more rules and regulations!  Though the “close contacts” change is the only thing going into effect immediately, the other changes Cal OSHA changes included another 2 year extension of the COVID regulations (Horary 2 more years of new mask fashions! I was changing up and going with real mink this winter – maybe white rhino skin?  Just Kidding.  These will be voted on in December 2022.

On October 14, 2022 Cal/OSHA issued a 15-day change notice and made considerable changes to the draft regulation’s text thinking no one notice no doubt. Though the full import of these changes is still being reviewed, the most important are:

1. New “close contact” definition based on the size of the workplace into the draft regs.
2. Reducing the definition to end an “outbreak”— now one case in a two-week period does not extend the outbreak. Instead, two cases will be the threshold to continue outbreak precautions. Luckily no outbreaks for any of my friends yet.
3. Changes to COVID at Work Notice requirements— with the new laws passed, including AB 2963 (Reyes; D-San Bernardino) changing notice requirements in the workplace, requiring COVID Notice until January 2024 [if an employer or representative of the employer receives a notice of potential exposure to COVID-19, the employer is required to take specified actions within one business day of the notice of potential exposure, including providing written notice to all employees on the premises at the same worksite that they may have been exposed to COVID-19 has been extended to January 1, 2024], the regulation is being adjusted to match.

California Regulations Mean Changes for Employers of All Sizes

Employers of all sizes need to pay attention to this upcoming Cal OSHA meeting.  Do you remember Caliornia exclusion pay?  That was Cal/OSHA’s Emergency Temporary Standards (“ETS”) on COVID-19 Prevention that required employers to exclude employees from the workplace under certain circumstances, such as when someone showed up with COVID and coughed their disgusting germs all over the office. While the employee is excluded, their employer must maintain their pay and benefits. For more information on the ETS and whether it applies to your workplace, refer to Cal/OSHA’s Frequently Asked Questions.

Remember, The ETS applies to all employers, employees, and places of employment with the following exceptions:

1. Work locations where there is only one employee who does not have contact with other people.
2. Employees who are working from home.
3. Employees who are covered by the Aerosol Transmissible Diseases regulation (Cal. Code Regs., tit. 8, § 5199) (section 5199).
4. Employees working from a location chosen by the employee that is not under the control of the employer (for instance, an employee teleworking from a café or a friend’s home).

Exclusion pay is not included in the new proposal and will expire this December 2022 as expected.  The real question is why the F*** is California looking at extending our COVID-19 regulations for 2 more years when no other states have such a regulation, and infection rates are declining in Orange, San Diego and Los Angeles Counties?  When will this nightmare end? Even Governor Gavin Newsome Ordered the COVID state of emergency to end February 28, 2023, maybe we could do some coordination efforts? We suggest you ask your state representatives.

Quintilone & Associates Can Help

If you have any questions about this article, Employee handbooks (we write them too), or have issues with unpaid wages, commissions, company charges to your wages, business expenses, off-the-clock work, or any issues with your pay at your current or former employer, please feel free to contact:

Richard E. Quintilone II, Esq. Kyle Gallego Esq. or Jeffrey T. Green, Esq.

Quintilone & Associates 22974 El Toro Road, Suite 100 Lake Forest CA 92630

Phone 49.458.9675 Fax 949.458.9679 Email req@quintlaw.com; kjg@quintlaw.com or jtg@quintlaw.com web www.quintlaw.com

California Governor signs Pay Transparency for Pay Equity Act

California Governor signs Pay Transparency for Pay Equity Act

Following up with a Law.360 report, Governor Gavin Newsome signed a new California law requiring employers to disclose salary ranges on job listings and could encourage many employers to voluntarily opt for transparency, attorneys say.  The law seems to be aimed at employee leasing companies that provide thousands of employees in the state with employment.   California employers with 15 or more employees must include in all their job ads a range of what they reasonably expect to pay for the role.

California Gov. Gavin Newsom approved and signed into law the Pay Transparency for Pay Equity Act [Senate Bill 1162], into law on Tuesday. It makes California the biggest and most populous player in a growing list of states and municipalities — including Colorado, Washington and New York City — that are implementing pay transparency laws in an effort to close gender and race pay gaps.

In addition to the salary range requirement, the new law says employers must share salary ranges with their current employees upon request, and it builds on existing pay data reporting requirements as of January 1, 2023 and the reporting deadline for the salary range data collection is expected in May 2023, pending any challenges to the law.

Job Listings Now Needs to Include Pay Ranges

As stated above, California employers with 15 or more employees must include in all their job listings a range of what they reasonably expect to pay for the role.  It appears to some experts that the new law builds upon previous California pay equity legislation, such as a ban on asking applicants for their salary history. Most employers, like most law firms, list the pay range based on experience. Employers are supposed to list their reasonable estimates for the ranges in good faith, it might not always work out that way, she said. Our best estimate of employer compliance would include the company providing overly broad pay scale ranges to avoid being non-compliant and without room to negotiate pay as well as avoid litigation or costly fines.

Employees Can Access Pay Info Upon Request to the EMployer

The new law also requires all California employers to disclose the salary range for a current employee’s position if that employee requests it. All employers must comply with this section, not just those with a certain number of employees.   This will undoubtedly help employees with raises, which is a good thing for good employees.

Employers Will Have to Turn Over More Wage Data to the State

Cuasing new administrative burdens, employers with 100 or more contract workers — not independent contractors, but contracted employees such as those hired through staffing agencies (some of who we have represented briefly in the past) — must provide wage data on those workers to the California Civil Rights Department. It is unclear yet as to how and when litigation to enforce compliance will occur.  The reports need to be broken down by (1) sex [male and female], (2) race and ethnicity according to the law. California employers with 100 or more employees already report this information for direct hires.  This follows the data collection requirements of the Equal Employment Opportunity Commission [“EEOC”].  The EEOC regularly files actions against employers for pay discrimination. 

According to experts reviewing the legislation, the California Civil Rights Department has “made it clear” that the reporting requirement applies broadly to employers around the country as long as they have at least 1 employee physically working here in California.

Conclusion

This is more work for employers in California but it will assist with the policy goals of equal pay for all workers and should result is some Claiofnria employees getting a raise – a good thing!

If you have any questions about this article, Employee handbooks (we write them too), or have issues with unpaid wages, commissions, company charges to your wages, business expenses, off-the-clock work, or any issues with your pay at your current or former employer, please feel free to contact:

Richard E. Quintilone II, Esq. Kyle Gallego Esq. or Jeffrey T. Green, Esq.

Quintilone & Associates

22974 El Toro Road, Suite 100, Lake Forest CA 92630

Phone 949.458.9675

Fax 949.458.9679

Email req@quintlaw.com; kjg@quintlaw.com or  jtg@quintlaw.com web www.quintlaw.com

As part of the federal CARES Act, the new Pandemic Unemployment Assistance ("PUA") program helps unemployed Californians who are business owners, self-employed, independent contractors, have a limited work history, and others not usually eligible for regular state UI benefits who are out of business or services are significantly reduced as a direct result of the pandemic. The provisions of the program once operational include:

• Up to 39 weeks of benefits starting with weeks of unemployment beginning February 2, 2020, through the week ending December 26, 2020*, depending on when you became directly impacted by the pandemic.
• An additional $600 to each PUA weekly benefit amount you may be eligible to receive, as part of the separate CARES Act Pandemic Additional Compensation program. Only the weeks of a claim between March 29 and July 25* are eligible for the extra $600 payments.

Under the CARES Act of 2020, the $600 additional benefits are available through 07/31/20. However, the U.S. Department of Labor has issued guidance to clarify that, for most Californians, the last full week of benefits will end on 07/25/20. Similarly, the PUA program has a legislative end date of 12/31/20, but for Californians, the last full week of benefits will end on 12/26/20.

Benefits can be retroactive to weeks starting on or after February 2, 2020, depending on your last day of work due to COVID-19 and regardless of when you submitted your claim application. The effective date of your claim will begin the Sunday of the week when you last worked and became unemployed due to reasons directly related to COVID-19.

If you have any questions about the CARES Act or California leave, please contact Richard E. Quintilone II Esq. req@quintlaw.com www.quintlaw.com or 949.458.9675.

DOL hits critical issues in Coronavirus Leave Law Questions - California Answers

The U.S. Department of Labor on Saturday further fleshed out its rules governing the new emergency sick leave law enacted in response to the novel coronavirus pandemic, tackling nearly two dozen “critical issues” that hadn’t yet been addressed.

The agency’s latest guidance took on scenarios that it hadn’t yet addressed in previous iterations of a Q&A document it first issued on March 24 and has updated several times after the passage of the Families First Coronavirus Response Act. The law, which President Donald Trump signed on March 18, takes effect April 1 and will remain in place until the end of the year.

Congress passed the FFCRA as part of its broader effort to help millions of Americans cope with the economic storm wrought by the virus, requiring businesses with fewer than 500 workers to provide emergency short- and long-term paid leave.

The DOL has already gone through several rounds of guidance since the FFCRA was signed into law. In its initial batch of guidance issued March 24, the DOL touched on issues like which categories of workers could be counted toward the 500-worker threshold.

That was followed days later by another FFCRA-related guidance that included notices that employers must post laying out the triggers for paid sick and leave time, the amount of time workers can take off, and the amount they’ll be paid while off work. The agency also sent a memo to field staff that laid out a nonenforcement policy for employers that unwittingly break the law that will remain in place until April 17.

And on Friday, the DOL updated its Q&A document to address issues such as the applicability to the FFCRA of so-called intermittent leave, which is when workers take leave for short periods of time, as well as the law’s application to businesses that are forced to shutter amid the COVID-19 pandemic.

In its latest update on Saturday, the DOL again expanded its Q&A guidance from about three dozen entries to nearly 60, including a section that fleshes out the details of a carve-out in the law for certain employers with less than 50 workers.

While the law does not exclude those smaller employers outright, it directed the DOL to issue regulations exempting businesses that fall below the 50-employee threshold if making them pay leave would jeopardize their business.

By Vin GurrieriLaw360 (March 30, 2020, 6:13 PM EDT) — The U.S. Department of Labor on Saturday further fleshed out its rules governing the new emergency sick leave law enacted in response to the novel coronavirus pandemic, tackling nearly two dozen “critical issues” that hadn’t yet been addressed.

The agency’s latest guidance took on scenarios that it hadn’t yet addressed in previous iterations of a Q&A document it first issued on March 24 and has updated several times after the passage of the Families First Coronavirus Response Act. The law, which President Donald Trump signed on March 18, takes effect April 1 and will remain in place until the end of the year.

The U.S. Department of Labor has expanded its guidance on the Families First Coronavirus Response Act. The topics tackled by the DOL in Saturday’s updated guidance include the extent to which certain small businesses can be exempted from the FFCRA’s mandates and whether public sector workers can avail themselves of leave under the new law, among other things.

“The response to the guidance we’ve published so far has illustrated the critical need that workers and employers have for this important information,” said Cheryl Stanton, administrator of the DOL’s wage and hour division. “This round includes some of the most common questions we are receiving and will help ensure that the American workforce has all the tools and information needed in these very trying times.”

Congress passed the FFCRA as part of its broader effort to help millions of Americans cope with the economic storm wrought by the virus, requiring businesses with fewer than 500 workers to provide emergency short- and long-term paid leave.

The law provides workers with two weeks of time off at full pay if they can’t work for various reasons tied to COVID-19, including if they’ve been quarantined or have COVID-19 symptoms and are seeking a diagnosis. The law applies to part- and full-time workers, providing them as many hours off as they generally work in two weeks, up to 80 hours.

Employers must pay employees at their full wage if they are taking time off for themselves or two-thirds of their regular pay if they have to care for a family member, up to certain caps. The bill also amends the Family and Medical Leave Act to give workers long-term paid time off at partial pay if they can’t work because their child’s school has closed. Employers covered by the law can seek reimbursement of any qualifying wages they pay under the FFCRA through tax credits.

The DOL has already gone through several rounds of guidance since the FFCRA was signed into law. In its initial batch of guidance issued March 24, the DOL touched on issues like which categories of workers could be counted toward the 500-worker threshold.

That was followed days later by another FFCRA-related guidance that included notices that employers must post laying out the triggers for paid sick and leave time, the number of time workers can take off, and the amount they’ll be paid while off work. The agency also sent a memo to field staff that laid out a nonenforcement policy for employers that unwittingly break the law that will remain in place until April 17.

And on Friday, the DOL updated its Q&A document to address issues such as the applicability to the FFCRA of so-called intermittent leave, which is when workers take leave for short periods of time, as well as the law’s application to businesses that are forced to shutter amid the COVID-19 pandemic.

In its latest update on Saturday, the DOL again expanded its Q&A guidance from about three dozen entries to nearly 60, including a section that fleshes out the details of a carve-out in the law for certain employers with less than 50 workers.

While the law does not exclude those smaller employers outright, it directed the DOL to issue regulations exempting businesses that fall below the 50-employee threshold if making them pay leave would jeopardize their business.

In Saturday’s guidance, the Labor Department laid out the parameters for businesses to claim that exemption so as to not provide sick leave or expanded medical leave to workers whose kids’ schools or childcare providers are closed because of COVID-19.

To do so, the DOL said that an “authorized officer of the business” must determine that the leave request falls into any one of three buckets: that the paid leave provision would cause the business’ expenses and financial obligations to exceed its revenue and cause it to “cease operating at a minimal capacity”; that the absence of any workers who request FFCRA leave will “entail a substantial risk” to the company’s financial well-being or its ability to operate because they possess “specialized skills, knowledge of the business, or responsibilities”; or that there aren’t enough qualified workers available to do the work the employees requesting FFCRA leave perform if that work is necessary for the business to run at “minimal capacity.”

Elsewhere in the DOL’s newly updated guidance, it clarified that paid sick leave under the FFCRA doesn’t affect an employee’s ability to take any other forms of paid leave they have accrued, such as time mandated by city or state laws or time offered as part of company policy.

Some of the California related questions our firm has been tackling:

Can we ask an employee to stay home or leave work if they exhibit symptoms of the COVID-19 coronavirus or the flu?

Yes, you are permitted to ask them to seek medical attention and get tested for COVID-19. The CDC states that employees who exhibit symptoms of influenza-like illness at work during a pandemic should leave the workplace. The Equal Employment Opportunity Commission (EEOC) confirmed that advising workers to go home is permissible and not considered disability-related if the symptoms present are akin to the COVID-19 coronavirus or the flu.

Can I take an employee’s temperature at work to determine whether they might be infected?

Yes. The EEOC confirmed that measuring employees’ body temperatures is permissible given the current circumstances. While the Americans with Disabilities Act (ADA) places restrictions on the inquiries that an employer can make into an employee’s medical status, and the EEOC considers taking an employee’s temperature to be a “medical examination” under the ADA, the federal agency recognizes the need for this action now because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions. 

However, as a practical matter, an employee may be infected with the COVID-19 coronavirus without exhibiting recognized symptoms such as a fever, so temperature checks may not be the most effective method for protecting your workforce.

Note: If your company does business in the State of California (e.g., if you have one or more locations, employees, customers, suppliers, etc. in the state), and your business is subject to the California Consumer Privacy Act (“CCPA”), then you have to provide employees a CCPA-compliant notice prior to or at the same time as your collection of this information.

What precautions are needed for individuals who are taking the temperatures of employees, applicants or customers?

To protect the individual who is taking the temperature, you must first conduct an evaluation of reasonably anticipated hazards and assess the risk to which the individual may be exposed. The safest thing to do would be to assume the testers are going to potentially be exposed to someone who is infected who may cough or sneeze during their interaction. Based on that anticipated exposure, you must then determine what mitigation efforts can be taken to protect the employee by eliminating or minimizing the hazard, including personal protective equipment (PPE). Different types of devices can take a temperature without exposure to bodily fluids. Further, the tester could have a face shield in case someone sneezes or coughs. Further information can be found at OSHA’s website, examining the guidance it provides for healthcare employees (which includes recommendations on gowns, gloves, approved N95 respirators, and eye/face protection).

An employee of ours has tested positive for COVID-19. What should we do?

You should send home all employees who worked closely with that employee to ensure the infection does not spread. Before the infected employee departs, ask them to identify all individuals who worked in close proximity (within six feet) for a prolonged period of time (more than a few minutes) with them in the previous 14 days to ensure you have a full list of those who should be sent home. When sending the employees home, do not identify by name the infected employee or you could risk a violation of confidentiality laws. If you work in a shared office building or area, you should inform building management so they can take whatever precautions they deem necessary. The CDC provides that the employees who worked closely with the infected worker “should then self-monitor for symptoms (i.e., fever, cough, or shortness of breath).”

How long should the employees who worked near the employee stay at home? Those employees should first consult and follow the advice of their healthcare providers or the public health department regarding the length of time to stay at home. If those resources are not available, the employee should at least remain at home for three days without a fever (achieved without medication) if they don’t develop any other symptoms. If they develop symptoms, they should remain home for at least seven days from the initial onset of the symptoms, and three days without a fever (achieved without medication).

If you have any questions about the Families First Coronavirus Response Act and California leave, please contact Richard E. Quintilone II Esq. req@quintlaw.com or 949.458.9675.