In the short time that the Viking River v. Moriana case has been out, a few trends are emerging in wage and hour lawsuits. The Viking River decision does not just impact California employers with active litigation, but also influences how employers should approach arbitration agreements going forward.

An important decision came down from the California Supreme Court this week. The decision clarifies how employers should report meal and rest period premium payments. Failing to properly adhere to this new reporting standard may leave your business vulnerable to liability.   

As federal and state governments continue to loosen their requirements in the workplace for COVID-19, California has followed suit and made it easier for employers to comply with COVID-19 workplace standards.

The United States Supreme Court will soon hear a pivotal case impacting employers with non-exempt hourly employees. The case, Moriana v. Viking River Cruises, is set for oral argument on March 30, 2022, with a decision expected this summer.

California has reinstituted its paid COVID-19 supplemental sick leave, which requires employers with more than 25 employees to provide supplemental paid sick leave (SPSL) to employees out with COVID-19 or related issues, retroactive to January 1, 2022.

On December 16, the Occupational Safety and Health Standards Board readopted the Cal/OSHA COVID-19 Prevention Emergency Temporary Standards (ETS) with revisions. The emergency standards take effect on January 14, 2022, applying to most workers in California not covered by the Aerosol Transmissible Diseases standard. Below, please see the important requirements that have not changed and the revisions. There are definitions included for reference.

The stay on the Emergency Temporary Standards (“ETS”) was dissolved on Friday and the ETS is now reinstated. OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.

To refresh your recollection, below is the original legislative update about the new ETS.

OSHA has issued an Emergency Temporary Standard (ETS) requiring all employers with at least 100 employees to ensure that their workers are vaccinated or submitting to weekly COVID testing. The ETS is effective November 5, 2021, and employees have until January 4, 2021, to be fully vaccinated or begin testing weekly. 

The enforceability of arbitration agreements is one of the most litigated and appealed issues in employment law.  And now the appellate courts are at it again. On September 15, 2021, the Ninth Circuit Court of Appeals in Chamber of Commerce v. Bonta, issued an important ruling on the enforceability of arbitration agreements. You might have heard about a law passed last year called AB 51, which prohibited California employers from forcing employees to sign arbitration agreements as a condition of employment. The bill even went so far as to make it a misdemeanor for employers to use mandatory arbitration agreements.

This guidance recommends stronger workplace COVID protocols, including increased masking for all employees regardless of vaccination status and encourages vaccination for all employees. It also recommends physical distancing and other COVID prevention and reporting methods most businesses already have in place. At this time, the OSHA recommendations are guidance only and are not mandatory.

In the latest COVID news, the CDC has reversed its position on mask mandates indoors for vaccinated individuals and is now recommending that everyone wear masks indoors, regardless of vaccination status.

Last week, the California Supreme Court issued a decision in Ferra v. Loews Hollywood Hotel addressing what rate needs to be paid for meal and rest period premium payments.

The American Rescue Plan Act (“ARPA”) created a COBRA subsidy that requires employers to cover 100% of the employee’s cost of continuing group health coverage under insured and self-insured plans subject to COBRA for up to six months if an employee has lost coverage under their employer’s health care plan due to a reduction in hours or involuntary termination (for reasons other than gross misconduct) and elects COBRA continuation. The subsidy period is between April 1, 2021 and September 30, 2021 and does not lengthen the COBRA period. Who are already enrolled in COBRA; or who did not elect COBRA when it initially became available to them; or who elected COBRA initially but let the coverage lapse; who are not eligible for coverage under another employer’s group health plan or under Medicare.

On March 19, 2021, California Governor Gavin Newsom signed Senate Bill (SB) 95, which creates new Labor Code section 248.2 and mandates that employers provide employees with supplemental paid sick leave (SPSL) for various COVID-related absences in addition to paid time off benefits employees receive by law or policy, e.g., non-COVID statutory paid sick leave or vacation.

In Donohue v. AMN Service, LLC, the Supreme Court held that “employers cannot engage in the practice of rounding time punches — that is, adjusting the hours that an employee has actually worked to the nearest preset time increment — in the meal period context. The meal period provisions are designed to prevent even minor infringements on meal period requirements, and rounding is incompatible with that objective.” Donohue v. AMN Services, LLC, No. S253677 (Cal., Feb. 25, 2021) at *1.

Thank you for attending our recent webinar on the new California Supreme Court case, Donahue v. AMN Services. As we discussed, California employment law compliance takes on heightened significance in light of COVID-19-inspired lawsuits and the general trend of increased litigation. We want to make sure our clients are prepared and fully protected. Please review the options below and click on any option for which you would like more help or information.