In Hill Farrer’s October 11, 2022 employment update, we discussed Senate Bill (SB) 1162, which was signed into law on September 27, 2022 and expanded employers’ pay data reporting requirements.  This serves as a reminder of the upcoming deadline of May 10 2023 for private employers with 100 or more employees to submit 2022 pay data reports to the California Civil Rights Department that comply with this new law.

While employers should be familiar with the existing law that requires employers to submit pay data reports, SB 1162 modifies and expands employers’ obligations relating to pay data reporting.  Specifically, SB 1162 made the following changes to the pay data reporting laws:

• Whereas the previous law required employers to file annual pay data reports with the number of employees by race, ethnicity, and sex in specific job categories, SB 1162 now requires employers to also include the median and mean hourly rate for each combination of race, ethnicity, and sex within each job category.

Below is a summary of several important new laws that impact California employers.

Pay Data Reporting and Pay Scale Transparency (SB 1162)

On September 27, 2022, Governor Newsom signed Senate Bill (SB) 1162 into law.  SB 1162, which will become effective January 1, 2023, (1) broadens the information employers must include in their pay data reports to the California Civil Rights Department, and (2) expands the pay scale information employers must disclose to both current and prospective employees.

Pay Data Reports:

Prior to SB 1162, California required private employers with 100 or more employees to file an annual “pay data report” to the California Civil Rights Department (formerly the DFEH) that included the number of employees by race, ethnicity, and sex in specified job categories.  More>>

On Wednesday, June 15, 2022, the United States Supreme Court issued its long-awaited ruling in Viking River Cruises v. Moriana, addressing the arbitrability of claims under California’s Private Attorneys General Act (PAGA).[1]

The Court held that the Federal Arbitration Act (FAA) conflicts with and displaces a rule invented by the California Supreme Court in 2014 in its Iskanian v. CLS Transp. Los Angeles, LLC opinion.  Until today, that rule precluded division of individual PAGA claims from non-individual PAGA claims, effectively precluding California courts from compelling individual PAGA actions to arbitration, even when the PAGA plaintiff employee had agreed to individual arbitration of any employment disputes.   More>>

On Thursday, March 3, 2022, President Biden signed into law H.R. 4445, known as the “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021.”  This is an important change to the Federal Arbitration Act (FAA) that allows employees alleging sexual assault or sexual harassment claims to file those claims in court and prevents them from being forced to arbitration.

The law gives individuals alleging sexual assault or harassment the right to invalidate any pre-dispute arbitration agreements and class action waiver clauses and proceed in the appropriate court or agency under federal or state law.  The law makes it clear that employees who are parties to an arbitration agreement have the choice of whether to pursue their sexual assault or harassment claims in arbitration or in court, regardless of what the arbitration agreement says. More>>

On February 9, 2022, Governor Newsom signed Senate Bill (SB) 114, which requires employers to provide up to 80 hours of supplemental paid sick leave for qualifying Covid-19 related reasons. Although the law is similar to SB 95 (the previous supplemental paid sick leave law which expired on September 30, 2021), there are some differences.

The law applies retroactively from January 1, 2022, however, an employer’s obligation to provide supplemental paid sick leave pursuant to SB 114 does not begin until February 19, 2022.  This law expires on September 30, 2022.

Covered Employers, Employees, and Family Members

SB 114 applies to employers with 26 or more employees. More>>

On November 4, 2021, the United States Department of Labor’s Occupational Safety and Health Administration (OSHA) announced its COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS), which became effective as of November 5, 2021 upon its publication in the Federal Register.

The ETS establishes binding requirements on private firms and companies with 100 or more employees, as well as public sector workers employed by state and local governments in the 26 states (including California) with OSHA State Plans. The ETS does not apply to employees who do not report to a workplace where other individuals such as coworkers or customers are present, employees while they are working from home, or employees who work exclusively outdoors. More>>

On July 15, 2021, the California Supreme Court issued its decision in Ferra v. Loews Hollywood Hotel, LLC, holding that employers must pay premium payments to employees for missed meal, rest, and recovery breaks at the employee’s “regular rate of pay” rather than at their base hourly rate.  This holding aligns the formula for calculating meal period and rest break premium payments with the formula for calculating overtime payments under California law.

The “regular rate of pay” includes all non-discretionary incentive payments, such as bonuses and commissions.  This rate has been used to calculate overtime rates for workers who are paid both a guaranteed hourly rate and performance-based incentive bonuses, or piecework earnings.  More>>

On June 17, 2021, the California Occupational Safety and Health Standards Board (Cal-OSHA) voted to eliminate mask requirements for vaccinated employees.  Almost immediately after Cal-OSHA’s vote, Governor Gavin Newson signed an executive order to allow the new laws to take place immediately.  Accordingly, effective yesterday, June 17, 2021, vaccinated employees no longer need to wear masks in the workplace.

Employees are considered vaccinated if the employer has received documentation that 14 days have elapsed since the employee received the second dose in a two-dose COVID-19 vaccine or 14 days have elapsed since the employee received a single-dose COVID-19 vaccine.  More>>

CAL-OSHA Votes to Relax Mask-Wearing Rules for Vaccinated Employees and to Change Workplace Safety Rules and Requirements

On June 3, 2021, the California Occupational Safety and Health Standards Board (Cal-OSHA) voted to relax workplace safety rules for employees who are vaccinated against COVID-19.  The rules are still subject to review by the state Office of Administrative Law.  However, assuming the Office of Administrative Law approves the rules, the new rules will go into effect on June 15, 2021.

Under the new rules, vaccinated employees are not required to wear masks if every employee in a room in the workplace is fully vaccinated and does not have COVID-19 symptoms.  More>>

On March 20, 2021, Govern Newsom signed SB 95, which requires California employers to provide mandatory supplemental paid sick leave for reasons related to COVID-19.  The law takes effect March 29, 2021, applies retroactively back to January 1, 2021, and expires on September 30, 2021.

The new law provides paid leave to employees who took leave after the December 31, 2020 expiration of the 2020 supplemental paid sick leave law, AB 1867, and the Families First Coronavirus Response Act (FFCRA), or who will take such leave prior to September 30, 2021, and also expands eligibility for leave.

Applicable to Employers with 26 or More Employees

SB 95 applies to employers with 26 or more employees.  More>>