[California] 5 employment law developments for March 2022

As we move further into March, there are a number of legal developments for California employers to take note of. California Employment Law Report breaks down five issues that should draw employers’ attention this month and are likely to have ongoing impacts for the rest of the year.

1. The likelihood of California’s Private Attorneys General Act (PAGA) surviving 2022

PAGA was reportedly designed by the California Legislature to offer financial incentives to private individuals to enforce state labour laws by recovering certain civil penalties.  Aggrieved employees can seek recovery of civil penalties for Labor Code violations they suffered, in addition to penalties for all Labor Code violations by the employer in a representative action, as long as the employee suffered by at least one violation. 75 per cent of the collected penalties must be distributed to the Labor and Workforce Development Agency, and the remaining 25 per cent is to be distributed among the employees affected by the violations, and a prevailing plaintiff is entitled to their fees and costs. PAGA claims are representative actions, which are distinct from class actions.

PAGA is being challenged in the courts.  On December 15, 2021, the U.S. Supreme Court granted certiorari in Viking River Cruises, Inc. v. Moriana.  At issue, in this case, is whether a California employer may enter into an arbitration agreement with an employee whereby the employee agrees to only bring his or her individual claims in an arbitration proceeding and not bring any class or representative claim under PAGA.  If the U.S. Supreme Court holds that employees may waive the ability to bring PAGA claims in arbitration agreements, it would deal a large blow to PAGA.  Such a ruling would prohibit many PAGA cases where the employee entered into an arbitration agreement with the employer waiving the ability to bring PAGA representative claims.  The oral argument is set for March 30, 2022, and a decision is expected in the summer of 2022.  More information about Viking River Cruises and PAGA can be read here.

PAGA is also being challenged by the voters of California. The California Fair Pay and Employer Accountability Act seeks to replace PAGA.  The initiative is at the stage of gathering enough signatures in order to be placed on the November 2022 ballot.  If passed, the initiative would provide employees with 100 per cent of the penalties collected, instead of only 25 per cent that is currently provided to the employees, prohibit attorneys’ fees from being awarded in these cases, and double the penalties against employers who willfully violate the law.  More information about the initiative can be found at Californians for Fair Pay and Accountability.

2. Face mask requirements lifted in Los Angeles

On, March 4, 2022, the County of Los Angeles lifted requirements for people to wear face masks indoors within the County.  The new order states that masks are strongly recommended, but not required, for all persons, regardless of vaccine status, in indoor public settings and businesses.  Masks are continued to be required for indoor settings with higher risks for transmission, such as public transit, transportation aubs, all healthcare settings; including long term care and adult and senior care facilities, correctional facilities and detention centres, homeless shelters and emergency shelters.

3. City of Los Angeles continues to require proof of vaccination status

Despite the State and many local cities relaxing the COVID-19 protocols, under SafePassLA, the City of Los Angeles still requires patrons of certain locations to demonstrate proof of vaccination before entering indoor spaces and large outdoor events within the City of Los Angeles.

4. California Labor Commissioner cites a resort in Rancho Palos Verdes for $3.3 million for violating COVID-19 Right to Recall law

Terranea Resort was cited for violating California’s “Right to Recall” law for failing to offer 53 employees positions once the resort reopened after the pandemic.

Labor Code section 2810.8 requires employers in the hospitality industry and building services to offer employees their positions back if they were separated from employment as a result of the COVID-19 pandemic.  The law applies to hotels and private clubs with 50 or more guest rooms, public and private event centres, airport hospitality operations and service providers.  It became effective on April 16, 2021, and does not expire until December 31, 2024.  More information about Labor Code section 2810.8 can be found at the DIR’s website.

5. California’s pay data reporting deadline of April 1 is fast approaching

California employers of 100 or more employees must report pay and hours-worked data by establishment, job category, sex, race, and ethnicity to the Department of Fair Employment and Housing (DFEH) annually.  Employers are required to report this data to the DFEH by April 1, 2022.  As a reminder, SB 973, passed in September 2020 created a new obligation for California employers to annually submit pay data reports to the DFEH.  

The DFEH published a frequently asked questions page clarifying some questions and providing resources on how to prepare and report this data.  California Employment Law Report’s previous article covering which employers must comply with the reporting requirements is here.

Source: California Employment Law Report

(Links via original reporting)

As we move further into March, there are a number of legal developments for California employers to take note of. California Employment Law Report breaks down five issues that should draw employers’ attention this month and are likely to have ongoing impacts for the rest of the year.

1. The likelihood of California’s Private Attorneys General Act (PAGA) surviving 2022

PAGA was reportedly designed by the California Legislature to offer financial incentives to private individuals to enforce state labour laws by recovering certain civil penalties.  Aggrieved employees can seek recovery of civil penalties for Labor Code violations they suffered, in addition to penalties for all Labor Code violations by the employer in a representative action, as long as the employee suffered by at least one violation. 75 per cent of the collected penalties must be distributed to the Labor and Workforce Development Agency, and the remaining 25 per cent is to be distributed among the employees affected by the violations, and a prevailing plaintiff is entitled to their fees and costs. PAGA claims are representative actions, which are distinct from class actions.

PAGA is being challenged in the courts.  On December 15, 2021, the U.S. Supreme Court granted certiorari in Viking River Cruises, Inc. v. Moriana.  At issue, in this case, is whether a California employer may enter into an arbitration agreement with an employee whereby the employee agrees to only bring his or her individual claims in an arbitration proceeding and not bring any class or representative claim under PAGA.  If the U.S. Supreme Court holds that employees may waive the ability to bring PAGA claims in arbitration agreements, it would deal a large blow to PAGA.  Such a ruling would prohibit many PAGA cases where the employee entered into an arbitration agreement with the employer waiving the ability to bring PAGA representative claims.  The oral argument is set for March 30, 2022, and a decision is expected in the summer of 2022.  More information about Viking River Cruises and PAGA can be read here.

PAGA is also being challenged by the voters of California. The California Fair Pay and Employer Accountability Act seeks to replace PAGA.  The initiative is at the stage of gathering enough signatures in order to be placed on the November 2022 ballot.  If passed, the initiative would provide employees with 100 per cent of the penalties collected, instead of only 25 per cent that is currently provided to the employees, prohibit attorneys’ fees from being awarded in these cases, and double the penalties against employers who willfully violate the law.  More information about the initiative can be found at Californians for Fair Pay and Accountability.

2. Face mask requirements lifted in Los Angeles

On, March 4, 2022, the County of Los Angeles lifted requirements for people to wear face masks indoors within the County.  The new order states that masks are strongly recommended, but not required, for all persons, regardless of vaccine status, in indoor public settings and businesses.  Masks are continued to be required for indoor settings with higher risks for transmission, such as public transit, transportation aubs, all healthcare settings; including long term care and adult and senior care facilities, correctional facilities and detention centres, homeless shelters and emergency shelters.

3. City of Los Angeles continues to require proof of vaccination status

Despite the State and many local cities relaxing the COVID-19 protocols, under SafePassLA, the City of Los Angeles still requires patrons of certain locations to demonstrate proof of vaccination before entering indoor spaces and large outdoor events within the City of Los Angeles.

4. California Labor Commissioner cites a resort in Rancho Palos Verdes for $3.3 million for violating COVID-19 Right to Recall law

Terranea Resort was cited for violating California’s “Right to Recall” law for failing to offer 53 employees positions once the resort reopened after the pandemic.

Labor Code section 2810.8 requires employers in the hospitality industry and building services to offer employees their positions back if they were separated from employment as a result of the COVID-19 pandemic.  The law applies to hotels and private clubs with 50 or more guest rooms, public and private event centres, airport hospitality operations and service providers.  It became effective on April 16, 2021, and does not expire until December 31, 2024.  More information about Labor Code section 2810.8 can be found at the DIR’s website.

5. California’s pay data reporting deadline of April 1 is fast approaching

California employers of 100 or more employees must report pay and hours-worked data by establishment, job category, sex, race, and ethnicity to the Department of Fair Employment and Housing (DFEH) annually.  Employers are required to report this data to the DFEH by April 1, 2022.  As a reminder, SB 973, passed in September 2020 created a new obligation for California employers to annually submit pay data reports to the DFEH.  

The DFEH published a frequently asked questions page clarifying some questions and providing resources on how to prepare and report this data.  California Employment Law Report’s previous article covering which employers must comply with the reporting requirements is here.

Source: California Employment Law Report

(Links via original reporting)