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Effective March 29, 2021, California employers with more than 25 employees must provide up to 80 hours of paid sick leave for certain COVID-19-related reasons.  The new law, Senate Bill 95 (adding Labor Code Sections 248.2 and 248.3), is retroactive to sick leave taken beginning January 1, 2021.  The law will expire on September 30, 2021.

Last year, California enacted a COVID-19 paid sick leave law that applied to employers with 500 or more employees, and which expired on December 31, 2020.  The new California COVID-19 supplemental paid sick leave law (“Supplemental Sick Leave”) requires any business with more than 25 employees to provide Supplemental Sick Leave that is in addition to paid sick leave that the employee is already entitled to under other applicable laws (or previously took under the prior California COVID-19 sick leave law).

Full-time employees are entitled to 80 hours of Supplemental Sick Leave, and part-time employees are entitled to an amount of leave that correlates with: (1) the number of hours the employee regularly works over a two-week period, or (2) if the employee works a variable number of hours, 14 times the average number of hours the employee worked each day in the six months preceding the date the employee took Supplemental Sick Leave.

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Continue Reading California Employers Required to Provide COVID-19 Supplemental Paid Leave, Retroactive to January 1, 2021

In an effort to close gender and racial pay gaps, California Governor Gavin Newsom recently signed Senate Bill (SB) 973 to require certain California employers to submit an annual pay data report to the Department of Fair Employment and Housing (DFEH) starting next year. The new law largely mirrors the EEO-1 “Component 2” pay data reporting requirement, which was imposed by the Obama administration and has been suspended by the Trump administration.

Under SB 973, private employers that have 100 or more employees and are required to file an annual Employer Information Report (EEO-1) must submit a pay data report to the DFEH covering the prior calendar year. The report must include: (1) the number of employees by race, ethnicity, and sex in each of ten job categories (the same job categories used in the EEO-1); (2) the number of employees by race, ethnicity, and sex whose annual earnings fall within each of the pay bands used by the United States Bureau of Labor Statistics; and (3) the total number of hours worked by each employee counted in each pay band. Employers with multiple establishments in California must submit a report for each establishment and a consolidated report that includes all employees. Employees include all individuals on payroll, whether full- or part-time, for whom the employer must withhold federal social security taxes and include in an EEO-1 Report.

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Continue Reading California to Require Annual Pay Data Reporting to DFEH

New York State’s new paid sick leave law (“NYSSL”) took effect on September 30, 2020, requiring employers to allow employees to begin accruing paid sick leave benefits immediately.  Employees may use their accrued leave under the NYSSL starting January 1, 2021.  In response to its state law counterpart, New York City Mayor Bill de Blasio has signed into law certain amendments to the existing NYC Paid Safe and Sick Leave Law (“NYCPSL”), also known as the Earned Sick and Safe Time Act, to align the NYCPSL with the NYSSL.

As discussed below, the NYSSL and NYCPSL impose similar paid sick leave requirements on employers, though the amendments to the NYCPSL expand employers’ obligations and strengthen New York City’s enforcement mechanisms.

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Continue Reading New York Employees May Begin Using New Paid Sick Leave Benefits on January 1, 2021

California Governor Gavin Newsom recently signed Senate Bill (SB) 1159, which adds COVID-19-related illness or death to the list of injuries covered under the state’s workers’ compensation program and creates new employer reporting responsibilities. The law codifies and extends Executive Order N-62-20, which was issued on May 6, 2020 and created a rebuttable presumption that employees with a COVID-19-related illness on or before July 5, 2020 contracted the virus at work and were eligible for workers’ compensation. The new law is retroactive to July 6, 2020 and expires on January 1, 2023.

Disputable Presumption for COVID-19 Cases During Workplace “Outbreaks”

Workers’ compensation generally provides benefits for employees who are injured or become ill in the course of their employment. Given the wide reach of COVID-19, however, it may be difficult to identify where the employee was exposed to the coronavirus for the purposes of showing that their exposure was caused by and arose out of their employment. In California, however, SB 1159 creates a “disputable presumption” that a COVID-19-related illness arose out of and in the course of employment, and is thus compensable, for employees who test positive during a COVID-19 “outbreak” at the employee’s “specific place of employment,” and whose employer has five or more employees. The new law specifies that workers’ compensation awarded for COVID-19 claims includes “full hospital, surgical, medical treatment, disability indemnity, and death benefits.”

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Continue Reading New California COVID-19 Workers’ Comp Bill Creates Disputable Presumption and New Reporting Requirements

Governor Newsom has signed Senate Bill (SB) 1383 to significantly expand the California Family Rights Act (CFRA).  The CFRA is California’s counterpart to the federal Family and Medical Leave Act (FMLA) and provides unpaid family and medical leave of up to 12 weeks for eligible employees.  The new law’s key revisions are summarized below and take effect on January 1, 2021.
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Continue Reading New Law Expands California Family Rights Act

California Governor Gavin Newsom has signed Assembly Bill (AB) 1867, to create COVID-19 supplemental paid sick leave (CPSL) requirements for employers with 500 or more employees, filling a gap left by the federal Families First Coronavirus Response Act (FFCRA) which applies only to employers with under 500 employees.  The new law also codifies existing supplemental paid sick leave requirements for certain food-sector workers that were implemented in April under California Executive Order E.O. N-51-20.

AB 1867 took effect on September 19, 2020.  It will expire on December 31, 2020, although if Congress extends the emergency sick leave provisions of the FFCRA, the provisions of AB 1867 would automatically be extended for the same period.

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Continue Reading California Mandates COVID-19 Supplemental Sick Leave for Larger Employers

On September 11, 2020, the U.S. Department of Labor (“DOL”) issued revised regulations to clarify certain rights and employer responsibilities under the paid sick leave and expanded family and medical leave provisions of the Families First Coronavirus Response Act (“FFCRA”).  The revisions were made in response to a recent decision of the U.S. District Court for the Southern District of New York (“SDNY”), which invalidated certain provisions of the FFCRA regulations.

The FFCRA, which we discussed here, requires employers with fewer than 500 employees to provide emergency paid sick leave (“EPSL”) and emergency Family and Medical Leave Act leave (“EFMLA”) to employees who meet certain COVID-19-related conditions.  DOL issued regulations implementing the FFCRA on April 1, 2020.

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Continue Reading DOL Revises FFCRA Regulations in Response to Federal Court Decision Invalidating Parts of the FFCRA

A New York federal district court judge has struck down significant portions of the U.S. Department of Labor’s (“DOL”) joint employer rule, which went into effect earlier this year.  As a result of this ruling, certain companies may be more likely to be deemed joint employers and exposed to liability for wage and hour violations under the Fair Labor Standards Act (“FLSA”).

As we described here, in March 2020, a final rule issued by DOL went into effect implementing a four-factor test for determining whether more than one entity may be considered an individual’s employer under the FLSA.  The new test shifted the existing rule’s focus on the “economic realities” of the alleged employer/employee relationship to a narrower inquiry regarding whether the alleged employer actually exercised control over the alleged employment relationship.

The District Court for the Southern District of New York has now held that DOL’s final joint employer rule violated the Administrative Procedures Act for two reasons.  First, the court found that the rule contradicted the text of the FLSA because it ignored relevant concepts defined in the statute, such as the definitions of “employ” and “employee,” and that DOL had erroneously applied different standards for “primary” and “joint” employment when no such distinction exists in the FLSA itself.  Second, the court found that DOL’s reasoning for the rule change was arbitrary, capricious, and not supported by adequate evidence.

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Continue Reading Federal District Court Strikes Down DOL Joint Employer Rule

In an important civil rights development, the U.S. Supreme Court today issued a 6-3 opinion in Bostock v. Clayton County, Georgia, holding that gay and transgender employees are protected under the prohibition against workplace sex discrimination in Title VII of the Civil Rights Act of 1964 (“Title VII”).  Justice Gorsuch delivered the majority opinion, joined by Justices Roberts, Ginsberg, Breyer, Sotomayor, and Kagan.  Dissenting opinions were filed by Justices Alito (joined by Thomas) and Kavanaugh.
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Continue Reading U.S. Supreme Court Holds Title VII Prohibits Discrimination Based on Sexual Orientation and Gender Identity

On Friday 20th March, the U.K. Government announced various support measures for UK businesses.  One of these was the Coronavirus Job Retention Scheme (the “Scheme”), which it is hoped will reduce the risk that U.K. employers promptly dismiss employees in response to the Coronavirus outbreak.  Further guidance was published on 26th March, providing some much needed detail on various aspects of the Scheme, which is expected to be operational by the end of April.

Any employer in the U.K. can access the Scheme for assistance with salary payments to those employees that would otherwise have been at risk of dismissal for redundancy and who are described for the purposes of the Scheme as “furloughed workers” (a new concept in English law).  Some questions remain, but the key details of the Scheme are:

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Continue Reading The Coronavirus Job Retention Scheme – Guidance for Businesses with Employees in the U.K.