SEXUAL HARASSMENT PREVENTION TRAINING DEADLINE IS APPROACHING

Posted by on Dec 1, 2020 in Newsflash | 0 comments

All California businesses must be in compliance with California’s Sexual Harassment Prevention Training by January 1, 2021. Employers should review their sexual harassment training obligations to ensure compliance. SB 1343 requires that all employers of 5 or more employees provide 1 hour of sexual harassment and abusive conduct prevention training to non-managerial employees and 2 hours of sexual harassment and abusive conduct prevention training to managerial employees once every two years. Employers with five or more employees must provide sexual harassment prevention training to all employees, even nonsupervisory employees, by January 1, 2021. The California Department of Fair Employment and Housing provides a free online sexual harassment and abusive conduct in the workplace training that satisfies California’s legal training requirement pursuant to Government Code section 12950.1. Click here- https://www.dfeh.ca.gov/shpt/. Employers of 50 or more employees have an existing and ongoing obligation to train new supervisory employees within six months of assuming their supervisory positions. Beginning January 1, 2021, new supervisory employees in workplaces of 5 or more employees must be trained within six months of assuming their supervisory positions, and new nonsupervisory employees must be trained within six months of hire. Employees must be retrained once every two years. It is not required that employers train independent contractors, volunteers, and unpaid interns. However, in determining whether an employer meets the threshold of having 5 employees and being subject to the harassment prevention training requirement, independent contractors, volunteers, and unpaid interns must be counted. For example, if an employer has 2 full time employees and 6 unpaid interns, the employer would meet the training threshold requirement and would need to ensure the two full time employees receive training only. The law requires employers to keep documentation of the training they have provided to their employees for a minimum of two years, including but not limited to the names of the employees trained, the date of training, the sign-in sheet for such training (if any), a copy of all certificates of attendance or completion issued, the type of training, a copy of all written or recorded materials that comprise the training, and the name of the training provider. Examples of tracking individual compliance include a certificate and/or a sign-in sheet that includes a verification that trainees completed the training. Documentation of the training should not be sent to DFEH but should be kept on the employer’s premises. In addition, every employer must post a poster developed by the Department of Fair Employment and Housing regarding Transgender Rights and Sexual Harassment in a prominent and accessible location in the workplace. The required posters can be found here...

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CAL-OSHA’S NEW EMERGENCY COVID-19 PREVENTION PROGRAM

Posted by on Dec 1, 2020 in Newsflash | 0 comments

On November 19, 2020, the California Occupational Safety and Health Standards Board implemented new temporary emergency COVID-19 regulations related to prevention and response to COVID-19 in the workplace. Yesterday, the California Office of Administrative Law (“OAL”) approved the emergency regulations. Now that the OAL has approved the emergency regulation, employers will have to immediately familiarize themselves with the new emergency regulation and implement necessary changes to workplace policies and procedures. One of the main requirements of the new emergency regulation requires employers to “establish, implement, and maintain an effective, written COVID-19 Prevention Program,” similar to California’s Injury and Illness Prevention Program requirements. The COVID-19 Prevention Program may be integrated into the employer’s existing Injury and Illness Prevention Program or be maintained in a separate document. The requirements of the COVID-19 Prevention Program are codified in section 3205 of the Cal-OSHA’s General Industry Safety Orders. Below is a general overview of the key requirements that employers must include in their COVID-19 Prevention Programs: System for Communicating. Employers must ask employees to report COVID-19 symptoms, possible exposures, and possible COVID-19 hazards at the workplace.  Employers must describe procedures or policies for accommodating employees with conditions that put them at increased risk of severe COVID-19 illness.  Employers must also provide information about access to COVID-19 testing, COVID-19 hazards, and the employer’s policies and procedures related to COVID-19. Procedures for Identifying and Evaluating COVID-19 Hazards. Employers are required to establish procedures to regularly identify and evaluate COVID-19 related hazards in the workplace. Employers are required to develop and implement  a system that provides for screening employees for symptoms associated with COVID-19 and employers should let employees participate in the process of identifying and evaluating COVID-19 related hazards. Investigating and Responding to COVID-19 Cases. Employers are required to establish a procedure to investigate COVID-19 cases[1] in the workplace. This includes procedures for verifying COVID-19 case status, receiving information regarding COVID-19 test results, the onset of COVID-19 symptoms, and identifying and recording COVID-19 cases. Employers also must take specific steps in response to a case of COVID-19 in the workplace, including, but not limited to, determining when the COVID-19 case was last present in the workplace, who may have been exposed, and notifying those employees or contractors who may have been exposed within one business day (without revealing any personal identifying information). Additionally, employers must offer free COVID-19 testing during working hours to all employees who were potentially exposed to the COVID-19 case and provide information on COVID-19-related benefits. Employers must also conduct an investigation to determine whether any workplace conditions could have contributed to the risk of COVID-19 exposure and what could be done to reduce exposure to hazards. Procedures for the Correction of COVID-19 Hazards. Employers must correct unsafe or unhealthy conditions, policies, and procedures in a timely manner after either learning of a COVID-19 positive case or concerns raised by employees.  COVID-19 Training. The employer needs to include policies for training employees on topics relating to COVID-19. Employer must train employees on COVID-19 prevention measures such as physical distancing and hand washing. Employer must provide information about the transmission of the virus that causes COVID-19. Employers must also instruct employees on the symptoms of COVID-19, the importance of not coming to work and obtaining a test if the employee has symptoms, COVID-19-related...

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New California Homestead Exemption Amount

Posted by on Nov 3, 2020 in Newsflash | 0 comments

California increased the creditor homestead exemption for personal residences, allowing debtors with residences in California to protect more equity in their homes. AB 1885 increased the California homestead exemption to the greater of $300,000 or the median sales price in the county where the single-family home is located in the prior year, not to exceed $600,000. This new homestead exemption amount will become effective January 1, 2021. The homestead exemption protects a specified portion of a debtor’s home equity in the event of bankruptcy or if a creditor requests that the debtor’s house be sold to pay a judgment. The current homestead exemption is believed by many to be antiquated. The new law is intended to significantly increase the protection of a debtor’s primary residence and bring the law current with California home values.  The new homestead exemption is significantly more protective for debtors than existing law. Under existing law, the homestead exemption provides for just a $75,000 to $175,000 homestead exemption, depending on age, disability and marital status. California will adjust the homestead exemption amounts for annual inflation based on the change in the annual California Consumer Price Index for All Urban Consumers, and thus the exemption amounts will likely increase...

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California Expands Leave Law

Posted by on Nov 3, 2020 in Newsflash | 0 comments

California Governor Gavin Newsom greatly expanded the California Family Rights Act (CFRA) by signing SB 1383 into law.  SB 1383 goes into effect on January 1, 2021. Under this new law, small business employers with as few as 5 employees will be required to provide certain unpaid, job-protected family, medical, and military leave to eligible employees. As the CFRA currently stands, only employers with 50 or more employees within a 75-mile radius (or 20 or more employees within a 75-mile radius for new child leave) are required to provide eligible employees up to 12 workweeks of unpaid protected leave during a 12-month period, if needed due to the employee’s own serious health condition, to care for a family member with a serious health condition, or to bond with a new child. This protected leave is available to employees that worked at least 12 months with the company and worked at least 1,250 hours during the previous 12-month period of employment. SB 1383, codified in Government Code section 12945.2, will now cover a substantially wider range of California employers- employers with 5 or more employees. The new law also eliminates the 75-mile radius requirement. As a result, if an employer has 5 employees that work anywhere in California, the employer is required to provide eligible employees job-protected leave. Governor Newsom stated that this lower threshold will impact “nearly 6 million Californians.” To qualify for CFRA leave, the employee still must have worked at least 12-months with the employer and have worked at least 1,250 hours in the 12-month period before the leave begins. An employee may take CFRA leave for the following reasons: For the birth of a child or placement of a child with the employee in connection with an adoption or foster care; To care for a child, parent, grandparent, grandchild, sibling, spouse, or domestic partner who has a serious health condition; To care for the employee’s own serious health condition; or Because of a qualifying exigency related to the covered active duty or call to covered active duty of an employee’s spouse, domestic partner, child, or parent in the Armed Forces of the United States Currently, under the CFRA, parents who work for the same employer are limited to a collective 12 weeks of leave that may be taken to bond with their child. SB 1383 eliminates this limitation.  Under the new law, new parents working for the same employer are both able to benefit from this leave and each may take up to 12 workweeks of unpaid job-protected leave. Notably, the federal Family and Medical Leave Act (FMLA) does not cover all of the categories established in SB 1383. SB 1383 expands the definition of family member to include grandparents, grandchildren, siblings and children of domestic partners.  Previously, only parents, children, spouses or registered domestic partners were included. The CFRA also eliminates the “key employee” exception. The “key employee” exception allowed employers to refuse reinstatement to the same or comparable position if the employee was in the highest paid 10% of employees. SB 1383 will cause California employers to revisit how they handle requests for leave under the new law. Employers who will be subject to CFRA beginning January 1, 2021 should familiarize themselves with the law’s requirement. Employers should consider whether any updates are appropriate...

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SB1159 – COVID-19 Workers’ Compensation Presumption and Employer Reporting Obligations

Posted by on Oct 1, 2020 in Newsflash | 0 comments

On September 17, 2020, California enacted SB 1159, which imposes certain reporting requirements on California employers. SB 1159 also creates a “disputable presumption” that employees who contract COVID-19 did so in the course of employment for the purpose of obtaining workers’ compensation benefits, under certain conditions. This legislation follows the Governor’s Executive Order N-62-20 signed on May 6, 2020, which created a disputable presumption that employees contracted COVID-19 at work and would be eligible for workers’ compensation benefits under specific circumstances.  The Executive Order expired on July 5, 2020.  The new law incorporates the Executive Order into the statute for the period between March 19, 2020 through July 5, 2020, and adds additional framework for COVID-19-related illnesses that occur between July 6, 2020 and January 1, 2023, at which point the presumption will no longer apply. The law went into effect immediately as emergency legislation. (See Labor Code section 3212.86.) Requirements for Coverage The disputable presumption applies to all employees who test positive during an “outbreak” at the employee’s “specific place of employment,” as long as the employer has 5 or more employees and the following circumstances apply (See Labor Code section 3212.88(a).): The employee tests positive for COVID-19 within 14 days after the employee performed labor or services at the employee’s place of employment at the employer’s direction. The day on which the employee performed labor or services at the employee’s place of employment was on or after July 6, 2020. The date of injury is the last date the employee performed labor or services at the employee’s place of employment at the employer’s direction prior to the positive test. The employee’s positive test occurred during a period of an outbreak at the employee’s specific place of employment. “Specific Place of Employment” The law defines a “specific place of employment” as a building, store, facility, or agricultural field where an employee performs work at the employer’s direction. This does not include the employee’s home or residence, unless the employee is providing home health care services to someone else in the employee’s home. (See Labor Code section 3212.88(m)(3).) For an employee who performs work at the employer’s direction in multiple places of employment within 14 days of the employee’s positive test, the employee’s test shall be counted for the purpose of determining the existence of an outbreak at each of those places of employment.  If an outbreak exists at any one of those places of employment, that shall be the employee’s “specific place of employment.” (See Labor Code section 3212.88(m)(3)(B).) “Outbreak” An “outbreak” exists if within 14 calendar days one of the following occurs at a specific place of employment (See Labor Code section 3212.88(m)(4)): For employers with 100 employees or fewer, 4 employees test positive for COVID-19. For employers with 100 employees or more, 4 percent of the number of employees who reported to the specific place of employment test positive for COVID-19. A specific place of employment is ordered closed by a local/state public health department, CAL-OSHA, or a school superintendent. There must be an “outbreak” during which an employee tests positive for the presumption to apply.  If there is no “outbreak”, then the presumption does not apply. Employer’s Duty to Report COVID-19 Claims From September 17, 2020 forward, when an employer knows or has reason to...

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California Governor Approved Modifications to Independent Contractor Law

Posted by on Oct 1, 2020 in Newsflash | 0 comments

California Governor approved modifications to Assembly Bill 5 (“AB 5”), California’s worker misclassification law, to allow more individuals to be classified as independent contractors. This distinction is important because employees are provided wage and hour, workplace safety, and other workplace protections that independent contractors generally are not. The new legislation, Assembly Bill 2257 (“AB 2257”), creates a carveout for certain professionals, making it easier for them to be classified as independent contractors rather than employees. However, most industries will still be subject to the requirements of AB 5. California’s worker classification law, AB 5, took effect on January 1, 2020. AB 5 codified the ABC Test adopted by the California Supreme Court in its 2018 decision in Dynamex Operations West, Inc. v. Superior Court (2018) 4 Cal.5th 903, and expanded it to cover more industries. Under the ABC Test, a worker is presumed to be an employee and not an independent contractor, unless the hiring entity satisfies all three of the following conditions: The worker is free from the control and direction of the hiring entity in connection with the performance of the work. The worker performs work that is outside the usual course of the hiring entity’s business. The worker is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed. AB 5 expanded the reach of Dynamex by making the ABC Test the default test for all Labor Code, Unemployment Insurance Code, and Wage Order claims. When the ABC Test does not apply, the Legislature left in place the California Supreme Court’s test announced in S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341, under which it is generally an easier task to establish that a particular individual is correctly classified as an independent contractor. Thus, virtually all independent contractor relationships under state employment law are evaluated either under the old “Borello” test, or the “ABC Test”. Under AB 5 (and now its replacement, AB 2257), the default is the ABC Test, which is very hard to satisfy. The ABC Test is rigorous to meet in part because unless each element (A, B, and C) is proven by the employer, the worker will be deemed to be an employee and not an independent contractor. Under Borello, on the other hand, the decision is made based on the “totality of the circumstances” and takes into account a multi-factor analysis- no single factor controls the determination but rather requires consideration of all potentially relevant factors. The scope of AB 2257 remains the same as it did in AB 5. That is, the ABC Test and definitions formerly contained in Labor Code 2750.3(a) are now going to be contained in Labor Code section 2775. AB 2257 contains new exceptions and modifies some of the old ones.  Here is a summary of the main changes. Business-To-Business Under AB 5, the “business to business” contract was analyzed under the ABC Test if the vendor’s employees were directly working with customers of the other company. Under AB 2257, this is modified to say: The business service provider is providing services directly to the contracting business rather than to customers of the contracting business. This subparagraph does not apply if the business service provider’s employees are solely...

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Navigato & Battin, LLP Opens Carlsbad Office

Posted by on Sep 1, 2020 in Newsflash | 0 comments

Even a pandemic cannot constrain Navigato & Battin’s expansion!  Well, it was not exactly planned that way, but nonetheless, N&B recently opened its second location in Carlsbad.  The new address is 5927 Balfour Court, Suite 110, Carlsbad, CA 92008.  “Over the last several years, our North County San Diego client base has grown substantially,” observes partner Mike Battin.  “It just made sense to have a physical presence in Carlsbad because our North County clientele continues to grow and both Travis [Bray] and I live here.” A satellite office, the Carlsbad location is more intimate, with 3 interior offices, reception, an open area for support staff and office equipment, a kitchen, and conference room.  N&B will maintain its flagship downtown San Diego location but its new Carlsbad office will allow greater reach throughout the County. And, quips Mr. Battin, “my commute went from 35 minutes to 5!” An office-warming party will be planned when things calm down and it is safe.  Until then, if any client would like to tour the new office or just say hi, come on by! If you need assistance from N&B (at either location), please give us a call at...

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Employer Reminder- Employees with Children Whose “Place of Care” Remains Closed Due to COVID-19 May be Entitled to Leave

Posted by on Sep 1, 2020 in Newsflash | 0 comments

Since schools are starting up in San Diego but most children are currently starting the year in various forms of online learning, employers must remember their obligations with respect to employees who request leave to care for their child whose “place of care” is closed for COVID-19-related reasons. The Families First Coronavirus Response Act (FFCRA) requires covered employers to provide eligible employees with up to two weeks of paid sick leave and up to twelve weeks of expanded family and medical leave, of which up to 10 weeks may be paid. FFCRA leave may be taken if the employee is unable to work or telework due to the need to care for his or her child whose “place of care” is closed as a result of COVID-19. The leave must be offered to employees who are able to work (including telework, if offered), but who cannot work because they must care for children whose schools or places of care are currently closed.  If telework is offered, the employee should explain why he or she is unable to telework. Of note, the IRS in its guidance indicates that if the child is over 14, the employee should also explain that special circumstances exist requiring the employee to provide care. “Place of care” means the physical location where care is provided while the employee is normally working. Examples of such places of care are: day care facilities, preschools, before-school and after-school programs, schools, summer camps, summer enrichment programs, and respite care programs. (Note, the Department of Labor has stated that a school that is offering virtual learning is still closed for purposes of the FFCRA). There is a limited exemption for private employers with fewer than 50 employees from having to provide emergency family and medical leave expansion act (EFMLEA) or the emergency paid sick leave act (EPSLA) leave for school or childcare closures when the imposition of such leave requirements would jeopardize the ongoing viability of the business. The FFCRA allows for this exemption if an authorized officer of the business has determined that: Providing the leave “would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;” “The absence of the employee or employees requesting paid sick leave or expanded family and medical leave would entail a substantial risk to the financial health or operational capabilities of the small business because of their specialized skills, knowledge of the business, or responsibilities; or” “There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee or employees requesting paid sick leave or expanded family and medical leave, and these labor or services are needed for the small business to operate at a minimal capacity.” This is a rather burdensome showing on the part of the employer to invoke the exception. Essentially the employer must show that granting leave to this particular employee would jeopardize the viability of its business. This is a case-by-case analysis that must be documented, and the determination must be made by an officer of the company. The employer is not required to send such documentation to the DOL, but should retain...

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California Supreme Court Decision Adds Clarity on Intentional Interference with At -Will Contracts and Clears Up Confusion on the Validity of Non-Compete Clauses in Business-to-Business Agreements

Posted by on Sep 1, 2020 in Newsflash | 0 comments

The California Supreme Court answered two questions in its opinion in Ixchel Pharma, LLC v. Biogen, Inc., clearing up uncertainty in California’s business tort law. Is a plaintiff required to plead an independently wrongful act in order to state a claim for tortious interference with a contract that is terminable at will? What is the proper standard to determine whether section 16600 of the California Business and Professions Code voids a contract by which a business is restrained from engaging in a lawful trade or business with another business? Providing guidance on the bounds of legitimate business competition under California tort and antitrust law, the Court held that: (1) To state a claim for tortious interference with an at-will contract, a plaintiff must plead and prove an independently wrongful act, beyond interfering with the contract itself (overruling conflicting lower court decisions which did not require an independent wrongful act); and (2) California’s statutory prohibition on contract provisions restraining trade-when applied to one business restraining another-is subject to the same rule of reason analysis prescribed by antitrust common law (as opposed to the strict analysis under Business and Professions Code §16600, which deems contracts in restraint of trade to be void except under certain very specific circumstances). Historically, California has long recognized two related but distinct economic relations torts: interference with the performance of a contract and interference with a prospective economic relationship. California Courts originally treated both torts generally the same; the only difference was that interference with contractual relations required the existence of a binding contract. The decision in Della Penna v. Toyota Motor Sales, U.S.A., Inc. (1995) 11 Cal.4th 376, however, drew a sharper “distinction between claims for the tortious disruption of an existing contract and clams that a prospective contractual or economic relationship has been interfered with.” In Della Penna, the Court held that a plaintiff seeking to recover damages for interference with prospective economic advantage (a business relationship which has not yet been formalized with a contract but which is likely to lead to a future business relationship) must plead as an element of the claim that the defendant’s conduct was “wrongful by some legal measure other than the fact of interference itself.” An act is independently wrongful if it is “unlawful, that is, if it is proscribed by some constitutional, statutory, regulator, common law, or other determinable legal standard.”  A plaintiff asserting intentional interference with a contractual relationship it had with another person or entity did not have to establish such an “independent wrong,” as the existence of contractual relationship itself warranted additional protection which simply does not exist in a prospective business relationship. Relying on this framework, the California Supreme Court found that interference with an at-will contract more closely resembles interference with prospective economic advantage, rather than interference with contractual relations. The Court concluded that “like parties to a prospective economic relationship, parties to at-will contracts have no legal assurance of future economic relations.” Therefore, stating a claim for interference with an at-will contract required pleading an independent wrongful act. The Court reasoned that allowing claims of interference with at-will contracts without requiring independent wrongful conduct would risk chilling legitimate competition and could “expose routine and legitimate busines competition to litigation.” The Court also differentiated contracts not terminable at-will for their concreteness...

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City of San Diego Extends Eviction Moratorium in Eleventh Hour

Posted by on Jul 1, 2020 in Newsflash | 0 comments

We discussed the City of San Diego’s eviction moratorium in last month’s newsletter. As promised, we have kept up with the latest news and learned the City Council voted to extend the eviction moratorium through September 30. This extension is longer than the previous 30 day extension and likely is the result of increasing COVID-19 numbers and the decisions to shut certain businesses back down. The newly extended moratorium will work the same way as before, requiring tenants to provide written notice to their landlords prior to the date rent is due and within one week of providing such notice, provide supporting documentation. More information about this moratorium can be found here. In conjunction with this extension, the City Council also approved a $15.1 million rent relief program. This program is aimed to assist those affected the most by COVID-19 and the government’s response to the pandemic. Once it receives final approval, this plan intends to award up to $4,000 to certain households meeting the criteria set out. The monies will be paid straight to landlords. This rent relief program comes as a welcome reprieve to tenants and landlords alike who have been unable to either pay or collect rent due to layoffs and business closures. Some sources suggest the program will only be able to help about 3,500 households, given its current size. Landlords whose tenants have been unable to pay rent during the last few months may want to approach their tenants about applying for this lottery-style program. If you have any questions about this program or process, contact the attorneys at Navigato &...

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