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“Gig” Workers Now Qualify for Unemployment Benefits Due to COVID-19
COVID-19 has forced nearly 20% of U.S. employees onto the unemployment rolls. Unemployment benefits will not make these employees whole, but the money remains crucial to those without an income.
Traditionally, unemployment benefits can only be obtained by employees, and not independent contractors (save for some exceptions, such as if an independent contractor pays into the EDD systems) like gig workers. Specifically, if you are self-employed, an independent contractor, or gig worker and are unable to work or have had your hours reduced due to COVID-19, you may be eligible for Unemployment Insurance (UI) benefits under a few different scenarios:
You chose to contribute to UI Elective Coverage and paid the required contributions to be considered potentially eligible for benefits.
Your past employer made contributions on your behalf over the past 5 to 18 months.
You may have been misclassified as an independent contractor instead of an employee.
If you don’t qualify for EDD benefits as under the above exceptions, Congress recently passed a law to aid gig workers called the Pandemic Unemployment Assistance (PUA) if you are not eligible
For more information about PUA benefits, visit the EDD at https://edd.ca.gov/Unemployment/UI_Online.htm. To apply for PUA benefits online, visit the EDD at https://edd.ca.gov/Unemployment/UI_Online.htm.
For more information about PUA benefits or any other employment-related issue, please contact Christopher Taylor at Taylor Labor Law, P.C. at (626) 219-6008 or visit www.taylorlaborlaw.com.
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Executive Order Requires Large Employers To Provide COVID-19 Sick Leave To Food Sector Essential Workers
By CD@F
Last week, Governor Newsom issued Executive Order N-51-20, requiring the food sector “hiring entities” with 500 or more employees in the US to provide paid sick leave to essential workers for certain COVID-19 related reasons called COVID-19 Supplemental Paid Sick. A copy of the Executive Order is available here. This Executive Order is intended to provide sick pay for essential food sector workers not covered by the federal Families First Coronavirus Response Act (FFCRA) for certain COVID-19 related reasons (Food sector workers working for larger employers).
Below are some key aspects of the Executive Order, as interpreted by the FAQs.
Q. Which Employers Are Covered?
A. This Executive Order applies to a “hiring entity” that has 500 or more employees nationwide, regardless of how many of those employees are located in California. A hiring entity is broadly defined in the Executive Order, including any type of private sole proprietor or business entity (corporations. partnerships, LLCs, LLPs, Delivery Network Companies, Transportation Network Companies, etc.). To determine the 500 employee threshold, a hiring entity counts employees broadly, in the same way as in the FFCRA, 29 C.F.R. § 826.40. The Executive Order does not apply to public employers (which are covered by the FFCRA).
Q. Which Workers Are Covered?
A. In addition to the hiring entity size factor, to qualify for this paid sick leave, workers must be a food sector worker performing work and:
be exempt from the Stay-at-Home Order (EO N-33-20);
perform work for the business outside the home; and
satisfy one of the following:
Work in one of the industries or occupations:
the canning, freezing, and preserving industry (IWC Wage Order 3-2001 § 2(B));
processing agricultural products after harvest (IWC Wage Order 8-2001 § 2(H));
facilities on a farm that prepare products for market (IWC Wage Order 13-2001 § 2(H));
general agricultural occupations (IWC Wage Order 14-2001 § 2(D));
Work for a business that runs a food facility, which includes grocery stores, fast-food restaurants, and distribution centers;
any operation that stores, prepares, packages, serves, vends, or otherwise provides food for human consumption at the retail level, or
Deliver food from a food facility for or through a hiring entity.
Thus, the type of food sector workers the Executive Order covers ranges from farmworkers to those workers who work in the retail food supply chain, including pick-up, delivery, supply, packaging, retail, or preparation. This includes grocery workers, restaurant or fast-food workers, workers at warehouses where food is stored, and grocery and restaurant delivery.
While the Executive Order appears to require a covered hiring entity to provide sick pay to all food sector workers who perform work for or through the hiring entity, regardless of whether they are deemed employees of the hiring entity, persons receiving FFCRA paid sick should not be entitled to double-dip.
Q. What Illnesses Are Covered?
A. To qualify for the sick pay, the food sector worker must be unable to work due to one of the following three reasons:
The worker is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
The worker is advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19; or
The worker is prohibited from working by the worker’s hiring entity due to health concerns related to the potential transmission of COVID-19.
Even if the worker is not sick with COVID-19, if a feed sector worker is exposed to someone diagnosed with COVID-19 or experiences symptoms and a stay-at-home order applies, a medical professional recommends self-quarantine or a hiring entity requires other workers to stay the food sector co-workers will be entitled to sick pay until they are allowed to return to work up to the limit allowed under the Executive Order.
Q. What Triggers The Right To Supplemental Paid Sick Leave?
A. The worker must make a verbal or written request to the hiring entity. Currently, there does not appear to be any requirement for the worker to provide documentation, similar to other COVID-19 sick pay provisions.
Q. Are There Any Exceptions?
A. Yes, if, on April 16, 2020, a hiring entity provided paid benefits to compensate workers for the same purposes as the Executive Order at an equal or higher level than the Executive Order, that hiring entity does is exempt from providing additional sick leave under the Executive Order. Thus, these sick leave benefits are not in addition to what is already provided, if the employer’s existing sick leave/PTO policies would be applicable to the employees who qualify for sick leave under the Executive Order.
Q. How Much Paid Sick Pay Do Full-Time and Part-Time Employees Get Under the Executive Order?
A. Yes, a food sector worker who is considered full-time or who worked or was scheduled to work an average of at least 40 hours per week in the two weeks before the leave is taken is entitled to up to 80 hours of sick pay.
A part-time food sector worker with a regular weekly schedule is entitled to the number of hours he/she is normally scheduled to work over two weeks. For a part-time worker with a variable schedule, the worker is entitled to up to fourteen times the average number of hours worked each day for or through that hiring entity in the prior six months. For example, if the worker worked an average of 2 hours per day over the last six months, he/she would be entitled to up to 28 hours of sick pay. If the worker has worked for the hiring entity for fewer than six months, the calculation is based on the average daily hours worked for the hiring entity.
Q. How is Paid Sick Leave Calculated?
A. The food sector worker is entitled to the highest rate of:
the worker’s regular rate of pay for the last pay period;
the state minimum wage; or
the local minimum wage.
However, there is a cap. A hiring entity is not required to pay more than $511 per day and $5,110 in the aggregate in sick pay to a food sector worker under this Executive Order.
Q. How Long Is This Executive Order In Place?
A. The Executive Order is effective immediately, and remains effective for the duration of any statewide stay-at-home order. A food sector worker who starts paid sick leave when such order expires is entitled to the full amount of paid sick leave the Executive Order.
Q. Is a Hiring Entity Required to Post a Notice?
A. Yes, there is a posting requirement. The poster is available here. Hiring entities are required under Labor Code section 247 to display a poster in a conspicuous place that contains information about this sick leave. If a hiring entity’s food sector workers do not frequent a workplace, the hiring entity may satisfy the notice requirement by disseminating notice through electronic means.
Q. What Are The Other Important Parts of the Executive Order?
The Executive Order also provides that food sector workers must be allowed to wash their hands every 30 minutes (and additionally if needed) if they work in a “Food Facility” defined by the Health and Safety Code. This applies in any operation that stores, prepares, packages, serves, vends, or otherwise provides food for human consumption at the retail level. The hand-washing provision will be enforced by local public health agencies.
Workers using or attempting to exercise their rights under this Executive Order are protected from retaliation under Labor Code section 246.5(c). If a food sector worker is not provided with the required sick pay, or if the food sector worker believes that he/she is retaliated against regarding this Executive Order, the worker may file a claim or a report of a labor law violation with the Labor Commissioner’s Office, the state agency charged with enforcement.
For more information, feel free to contact Christopher Taylor at Taylor Labor Law, P.C. at (626) 219-6008 or DC@F.
www.taylorlaborlaw.com
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"UNLIMITED" Vacation Time -- Too Good To Be True?
California law does not require employers to provide employees with paid time off/vacation pay. However, the average employer provides up to two weeks of vacation time annually. When vacation time is offered, certain rules apply. California Labor Code Section 227.3 requires employers to pay out all accrued, unused vacation pay as wages at the time of termination. If an employee has accrued 10 days vacation at the time of separation, then all 10 days of unused vacation time must be paid to the employee.
“Unlimited” vacation policies in which employees have no minimum and no maximum vacation and do not accrue any vacation time have become increasingly popular in recent years. But what is actually meant by "unlimited." Can you really take as many days off as you wish and continue to hold your job? Doubtful. And, when you leave the company, are you paid out any of your unused, "unlimited" vacation time? Employers say, "no."
On April 1, 2020, the California Court of Appeal issued the first published decision addressing unlimited vacation policies under California law. In this case, McPherson v. EF Intercultural Foundation, Inc., the employer offered "unlimited" vacation time. As a practical matter, however, employees were discouraged by management from taking more than the traditional two weeks of paid vacation. Some employees feared taking vacation at all. Others took many vacation days, only to discover it hurt their standing within the company because management never intended for employees to actually use "unlimited" vacation.
The Court of Appeal decided the employer's "unlimited" vacation time policy was ambiguous and without clear guidance for employees. Therefore, the court reasoned, the employer owed employees unpaid vacation wages under section 227.3 based on a traditional, two-weeks of vacation model.
This area of law is still developing, but the court clearly signaled employers cannot use "unlimited" vacation policies to avoid paying out unused vacation time unless employees receive a written policy clearly defining the parameters of "unlimited" vacation and employees are not discouraged from utilizing it within the policy.
For additional questions, please feel free to contract Christopher Taylor of Taylor Labor Law, P.C. at (626) 219-6008 or visit www.taylorlaborlaw.com.
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Penalties Against Employer for Paying Late Wages
Now that we're in 2020, California Assembly Bill 673 has become law. AB-673 updates existing labor code so employees can seek penalties for late wage payments. The penalty is $100 for the first violation. For further violations or anything deemed intentional, the penalty is $200 for each violation plus 25% of the wages owed. Late wages create difficulties for employees who need their paycheck when it's due. Hopefully, this law will encourage employees to pay their employees in a timely manner.
If you have questions related to this or any employment related issue, please don't hesitate to contact Christopher Taylor at Taylor Labor Law, PC at (626) 219-6008 for a no cost, immediate consultation.
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New Penalties for Employer's Failure to Pay Minimum Wages
Now that we're in 2020, California Assembly Bill 688 has become law. SB 688 expands on existing labor codes penalize employers $100 for the first time an employee fails to pay minimum wages and $200 for each time after that. Additionally, the employer is fined 25% of the total unpaid wages.
These penalties can add up quickly, so don't hesitate to contact Christopher Taylor at Taylor Labor Law, P.C. at (626) 219-6008 for a free, immediate consultation on your particular situation.
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Is My Job Protected If I Refuse to Work Due to Health & Safety Risk of COVID-19?
What are my specific workplace health and safety rights during the COVID-19 crisis?
Your employer is required to take steps to ensure your safety and health, and to provide you with enough training and protection to do your job safely. Under the law, your rights include:
The right to be properly trained by your employer about safety on the job.
The right to be warned about hazardous materials to which you are exposed.
The right to be given protective gear if you work with hazardous or contaminated materials.
The right to make a confidential request for an inspection of your workplace by the Division of Occupational Safety & Health for safety and health standard violations.
The right to file a confidential complaint with the Division of Occupational Safety & Health if you observe or suspect a problem with safety or health at your workplace.
Employer retaliation over COVID-19 concerns
California Labor Code Section 6311 prohibits an employer to demote, terminate, harass or otherwise retaliate against "essential workers" who refuse to work in the presence of a health & safety risk. For example, your employer cannot retaliate against employees, including "essential workers," who refuse to establish social distancing rules and/or provide reasonable Personal Protection Equipment (e.g., masks, face shields, whatever else may be appropriate depending upon the work) where COVID-19 presents a risk.
In fact, the health and safety issue need not be related to COVID-19. Employees can refuse to perform work that presents workers with health or safety risks, regardless of the risk. If an employee has a reasonable concern for their health and safety (e.g., employer is violating Cal-OSHA and/or OSHA regulations), then they can choose not to work and be protected by statutes like Labor Code Section 6311.
For additional information, please contact Christopher Taylor of Taylor Labor Law, P.C. at (626) 219-6008 for an immediate, no-cost consultation.
#COVID-19
#non-essential worker
#essential worker
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Bloomberg News Quotes Christopher Taylor of Taylor Labor Law, PC Regarding Firm's COVID-19 Wrongful Termination Case
https://news.bloomberglaw.com/daily-labor-report/fraud-investigators-violated-covid-19-ordinances-suit-says
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Orange County Register Publishes Article Concerning Taylor Labor Law COVID-19 Wrongful Termination Case
On April 10, 2020, Taylor Labor Law, PC filed a lawsuit on behalf of a client who was terminated because she refused to conduct her non-essential work during California's "Stay at Home" order, which began on March 19, 2020. Taylor Labor Law's client, Brittany Noh, worked for Fraud Fighters, Inc., a company that investigates workers' compensation fraud. Part of the client's job required her to interview injured parties in hospital settings, and the client feared for her safety, especially during the Stay at Home order. According to the allegations in Ms. Noh's complaint, her boss claimed Ms. Noh's work made her a "first responder" and therefore an "essential worker" who could continue working during the Stay at Home order. Ms. Noh contended she was not a first responder and could not work in the field. Ms. Noh was subsequently terminated.
Ms. Noh alleges the termination was a violation of Labor Code Sections 232.5, 6310, and 1102,5, which make it unlawful for an employer to terminate an employee who refuses to engage in work that creates a health and safety risk. The underlying laws being violated include Cal. Health and Safety Code § 120295, Los Angeles County Code § 11.02.080, and Governor Newsom's Executive Order N-33-20.
Read Orange County Register article concerning case:
https://www.google.com/amp/s/www.ocregister.com/2020/04/11/woman-says-she-was-fired-for-protesting-work-conditions-during-coronavirus-pandemic/amp/
Please contact Christopher Taylor at Taylor Labor Law, P.C. for an immediate, no-cost consultation at (626) 219-6008.
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CROWN Act: Race Discrimination Protections Expanded to Traits Historically Associated with Race Such As Hair Textures and Protective Hairstyles
In 2020, California became the first U.S. state to prohibit discrimination against employees who choose to wear their hair in its natural state. The CROWN Act,which stands for “Create a Respectful and Open World for Natural Hair,” is a law that prohibits discrimination based on hair style and hair texture. The Act amends the California Education Code and the Fair Employment and Housing Act’s definition of race to include traits historically associated with race, including hair texture and protective hairstyles. Protective hairstyles include, but are not limited to, “braids, locks, and twists.”
First introduced in California in January 2019 by Senator Holly Mitchell (District 30), the CROWN Act expanded the definition of race in the Fair Employment and Housing Act (FEHA) and Education Code, to ensure protection in workplaces and in K-12 public and charter schools. The inaugural CROWN Act was signed into law by Governor Newsom in California on July 3rd and went into effect January 1, 2020. It is the first legislation passed at the state level in the United States to prohibit such discrimination.
For more information on this topic or other work-related conflicts, you may telephone Christopher Taylor at Taylor Labor Law, P.C. at (626) 219-6008.
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California Legislature Strikes No Rehire Clauses In Settlement Agreements
Prior to 2020, an employee settling an employment claim with an ex-employer could be subject to a "no rehire clause." Such a clause could prohibit an employee from re-applying for a job from settling employer or any of the settling employer's "affiliates" or "partners." This language was determined to be too sweeping, potentially limiting an employee who settled a lawsuit with an ex-employer from obtaining a new job with many potential employers merely because of their relationship with the settling employer.
As of January 1, 2020, settlement agreement may no longer include "no rehire" provisions, opening the possibility of the aggrieved employee returning to work for the same employer or a company affiliated with the employer.
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Deadline to Pursue Discrimination-Related Claims Against Employer Increased from 1-Year to 3-Years
Effective January 1, 2020, California employees who are discriminated against and wish to pursue a claim have 3-years (rather than the old, 1-year deadline (also known as "1-year statute of limitation") to file a charge of discrimination with California's Department of Fair Employment and Housing. https://www.dfeh.ca.gov/ComplaintProcess/
If the charge is not filed within 3 years of the discrimination, then the employee waives hsi or her right to pursue a DFEH charge or civil lawsuit under the Fair Employment and Housing Act.
This extension of an employee's right to pursue discrimination-related claims is a huge benefit to employees and employee rights, as it allows additional time for aggrieved employees to learn their rights and make a reasoned decision whether they wish to pursue a charge with the DFEH and civil lawsuit against the employer.
For more information, please contact Christopher Taylor at Taylor Labor Law, P.C. at (626) 219-6008.
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It is not uncommon, especially for employees that work for large companies, to discover their pay stubs seem incorrect because the the amount of time reflected for time worked is incorrect.
Depending on how incorrect the pay stub appears, the employer may still be following California law.
This is illustrated by a case involving See's Candies (See’s Candy Shops v. Superior Court) California employees of See's Candies noticed their time-cards failed to reflect their exact punch in and punch out times. Instead, their time was rounded to the nearest 5 minutes, or the nearest one-tenth or quarter of an hour. For example, a punch out at 5:02 p.m. would be rounded down to 5:00 p.m., but a punch out at 5:04 p.m. would be rounded up to 5:06 p.m. In the See's case, the court noted the evidence was undisputed that this rounding could increase or decrease the total work time in any given day depending which tenth of an hour the punch was closest to.
See's Candies argued rounding time clock punches because paychecks were easier to administrate.
Based on statistics in this case and others, the court noted that more often than not the rounding afforded employees more time than less time. Additionally, it determined that over time the rounding up or down cancelled each other out and employees were compensated for all time worked.
California courts have continually ruled rounding time in such a manner is legal as long as it will not result, over a period of time, in failure to compensate the employees properly for all the time they have actually worked.
For more information concerning potential time-card violations or any other employment issue, please feel free to contact Christopher Taylor at Taylor Labor Law, P.C. for a no-cost consultation at (626) 219-6008.
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New California Law Extends Employees' Deadline To Sue Employers For Discrimination
On August 31, 2019, California's governor signed into law AB 9, known as the Stop Harassment and Reporting Extension (SHARE) Act. The new law extends the deadline to file an allegation of unlawful workplace harassment, discrimination, or civil rights-related retaliation under the California Fair Employment and Housing Act (FEHA) from one year to three years. AB 9 will impose a statute of limitations period that is six-times the length of the federal standard and three-times the length of the current California standard. Workplace harassment includes discrimination, retaliation based on protected characteristics such as sex and gender, sexual orientation, gender identity, race, age, religion, disability and more.
For more information, please contact Christopher Taylor at Taylor Labor Law, P.C. at (626) 219-6008.
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New Limitations In Confidentiality In Sexual Harassment Settlements
As of January 1, 2019, California law prohibits a settlement agreement from including a confidentiality provision that prevents the disclosure of factual information pertaining to civil or administrative complaints of sexual assault, sexual harassment, or workplace harassment, or discrimination based on sex. Any provision in a settlement agreement entered into on or after January 1, 2019, that prevents the disclosure of such information will be considered void as a matter of public policy. The law does permit a provision, however, that would safeguard the claimant’s identity and any facts that could lead one to discover the claimant’s identity (but only at the request of the claimant and in matters not involving a government agency or public official), as well as a provision that prevents the disclosure of the amount paid to settle the claim, at the request of either party.
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California Clarifies Ban On Salary History Questions
In 2017, A.B. 168 was signed into law prohibiting employers from asking job applicants for "salary history information."
This was intended to protect a Gender Pay disparity, whereby some employers knowingly or not fostered a pay disparity between men and women simply by basing a new salary on an old salary -- even though the prior salary may have been influenced by gender discrimination. The 2019 clarification states employers may ask about an applicant's salary expectations for a position. Additionally, prior salary history may be utilized by a new employer under a narrow set of circumstances believed to avoid gender discrimination.
For more information on the "salary history" ban, please contact us at your convenience.
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2019 Brings New Minimum Wage Rules
On January 1, 2019, the state minimum wage increases to $11 per hour for employers with 25 or fewer employees and to $12 per hour for employers with 26 or more employees. NOTE: Some California cities and counties have instituted their own minimum wage. For example, beginning July of 2019, employers with 25 or fewer employees must pay $13.25 per hour and $14.25 for employer with 26 or more employees. In Santa Clara County, employers must pay a minimum wage of $15.00 per hour.
If you wish to know more about minimum wages in your California city or county, please contact us.
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Talent Agencies Have New Sexual Harassment Responsibilities
2019 brought new responsibilities to talent agencies regarding sexual harassment in California. AB 2338 requires talent agencies must provide their adult artists with educational materials on sexual harassment prevention, retaliation and reporting resources, as well as on nutrition and eating disorders. All materials must be provided within 90 days in a language the artist understands. Artists who are between the ages of 14 and 17, along with their parent or legal guardian, will need to receive and complete training in sexual harassment prevention, retaliation and reporting resources before they are issued a work permit. AB 2338 further requires talent agencies to request and retain a copy of the minor’s entertainment work permit prior to representing or sending that minor on an audition, meeting, or interview for engagement of the minor’s services. The Labor Commissioner may assess civil penalties of $100 for each violation. Talent agencies will also be required to confirm to the Labor Commissioner, as a part of their license renewal process, that they have and will continue to provide the relevant educational materials.
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