Employment Law

Based on currently available data from the Centers for Disease Control and Prevention (CDC), people who have serious underlying medical conditions might be at higher risk for severe illness from COVID-19. These conditions include chronic lung disease, moderate to severe asthma, serious heart conditions, immunocompromised conditions (e.g., cancer, smoking, bone marrow or organ transplants, HIV or AIDS, use of immune weakening medications, or other immune deficiencies), severe obesity, diabetes, chronic kidney disease, and/or liver disease.

What if you’re an essential worker and have to continue working despite stay-at-home orders and your underlying medical condition?

The CDC has advised that those at higher risk need to take extra precautions, including by staying home. The CDC has also recommended high risk individuals check with local public health officials. The San Diego Health Officer has advised that a “strong recommendation is made” that all person who have “a chronic underlying condition, or have a compromised immune system self-quarantine themselves at home or other suitable location.” The Orange County Health Officer’s order is in accord. Employers are expected to follow guidance from the CDC, as well as State and local government guidelines, regulations, and orders, to maintain a safe workplace.

Thus, if you have a serious health condition and your employer is nevertheless making you work during COVID-19, you may have the right to a reasonable accommodation, e.g., teleworking. If that is not an option, then you may be entitled to a temporary leave of absence. If your employer refuses to offer you such an accommodation which results in the termination of your employment, you may have a wrongful termination claim against your employer.

More specifically, despite the societal and practical needs for essential workers to report to work to ensure continuity of operations of essential functions (e.g., food, healthcare, etc.), if the workplace is objectively unsafe or unhealthy, and your employer is nevertheless forcing you to report to work, it could be in violation of the Occupational Safety and Health Administration (“OSHA”) and California’s labor laws, such as Labor Code §§6400, 6402 (“No employer shall require, or permit any employee to go or be in any employment or place of employment which is not safe and healthful.”). Your employer could also be in violation of California’s anti-discrimination laws which require employers to accommodate employees with disabilities and/or medical conditions. These laws apply even if you work for an essential business. Based on the objective evidence offered by the CDC and local public health officials, it is not safe for most individuals with serious medical conditions to report to most workplaces. As such, if you have a serious medical condition and your employer is refusing to allow you to work from home and/or to take a temporary leave of absence, you may have a legal claim.

If you feel your employer is forcing you to work in an unsafe or unhealthy workplace, contact the attorneys at Haeggquist & Eck, LLP or by calling (619) 342-8000 to learn more about your rights.

The State of California implemented several employment laws that took effect on January 1, 2020. Here are some that may impact you.

Another Step Forward For A Living Wage

This year, the California minimum wage jumped to $12 per hour for companies with 25 employees or fewer, and $13 per hour for companies with more than 25 employees. The City of San Diego’s minimum wage is now $13 per hour for all employees, regardless of the employer’s size. Note that some cities in California have minimum wages that are even higher, for example, South San Francisco at $15 per hour.

Misclassification of Employees as Independent Contractors (Assembly Bill No. 5; Labor Code §§3351 & 2750.3)

This law sets forth the test to be used for determining whether a worker is an employee or an independent contractor, the so-called ABC test, set out in Dynamex. Under this test, a worker is considered an employee rather than an independent contractor unless the hiring party demonstrates that all three of the following conditions are satisfied:

A. The worker is free from the control and direction of the hiring party;

B. The worker performs work that is outside the usual course of the hiring entity’s business; and

C. The worker is customarily engaged in an independently established business of the same nature as the work performed.

The law has seven categories of exemptions. A worker who falls within one of the exemptions is not automatically considered an independent contractor; instead, the hiring party must demonstrate that it did not control the “manner and means” of accomplishing the desired result.

Extension of Time To File a DFEH Complaint (Assembly Bill No. 9; Government Code §§12960 & 12965)

The time period to file a Complaint with the Department of Fair Employment and Housing (“DFEH”) for complaints of unlawful employment practices has been extended from one year to three years.

No Forced Arbitration as a Condition of Employment (Assembly Bill No. 51; Government Code §12953; Labor Code §432.6)

Employers may not force employees to agree to arbitration as a condition of employment or continued employment. Employers also cannot threaten, retaliate or discriminate against, or terminate any employee or applicant for employment for refusing to agree to arbitration. Note that this law does not invalidate arbitrations the employee has previously agreed to.

Prohibition of “No-Hire” Provisions (Assembly Bill No. 749; Code of Civil Procedure §1002.5)

Employers are prohibited from including a “no rehire” provision in settlement agreements with employees. The law, however, does not prohibit an agreement to end a current employment relationship.

Unpaid Leave For Organ Donation (Assembly Bill No. 1223; Government Code §19991.11; Labor Code §1510)

Employers are required to grant an employee up to 30 days of additional unpaid leave of absence for donating an organ and prohibits life, long-term care, or disability insurance policies from discriminating against an organ donor.

Discrimination in Calculating Monetary Damages Prohibited (Senate Bill No. 41; Civil Code §3361)

Calculations or estimations of past, present, or future damages for lost earnings or impaired earning capacity shall not be reduced based on race, ethnicity, or gender.

Lactation Accommodations (Senate Bill No. 142; Labor Code §§1030 – 1034)

Employers must provide a lactation room or location with certain features, and access to a sink and refrigerator in close proximity to the employee’s workspace. If the employer denies reasonable break time or adequate space to express milk, this is deemed a failure to provide a rest period in accordance with California law. Employers are prohibited from discriminating or retaliating against or terminating an employee for exercising or attempting to exercise their lactation rights.

No Discrimination Based on Natural Hairstyles (Senate Bill No. 188; Government Code §12926)

This law protects employees from discrimination based on natural hair and hairstyles associated with race. California is the first state to ban discrimination based on natural hair. California’s Fair Employment and Housing Act (“FEHA”) protects against discrimination based on certain personal characteristics, including race. This law expands the definition of “race” to include “traits historically associated with race, including, but not limited to, hair texture and protective hairstyles,” including “braids, locks, and twists.”

Sanctions For Employer’s Non-Payment of Arbitration Fees (Senate Bill No. 707; Code of Civil Procedure §§1280 and 1281.96 – 1281.99)

If an employer strategically withholds payment of arbitration fees in order to delay or impede arbitration proceedings, this law allows arbitrators and courts to impose appropriate sanctions on the employer, including terminating sanctions. The law also addresses the lack of diversity in the arbitration industry by requiring arbitration companies to report the same kind of demographic information about their arbitrators as the Judicial Council is required to report about California state court judges.

Contact Us If You Believe Your Employer Violated the Law

The attorneys at Haeggquist & Eck, LLP are experienced and dedicated professionals who are committed to protecting your rights in the workplace. If you feel that your rights may have been violated, contact our attorneys online or at (619) 342-8000 to learn more.

On April 16, 2020, California Governor, Gavin Newsom issued Executive Order N-51-20. The April 16 Order, in short, provides an additional two weeks paid sick leave due to COVID-19 concerns for “Food Sector Workers,” such as agricultural farm workers, meat processing workers, dairy farmworkers, grocery workers, and food delivery workers. The additional leave is to be provided if: (1) the employee is subject to a federal, state, or local quarantine or isolation order; (2) the worker is advised by a health care professional to self-isolate or self-quarantine; or (3) the worker’s employer (a “Hiring Entity”) has prohibited the worker from working due to COVID-19.

The April 16 Order defines “Hiring Entity” as private employers with 500 or more employees in the United States. The April 16 Order is intended to fill a gap left by the federal Families First Coronavirus Response Act (the “FFCRA”), which left many food sector employees out in the cold since the FFCRA only applies to employers with less than 500 employees. For further information on the FFCRA, please see our post here.

As detailed in the April 16 Order, the Hiring Entity is required to pay employees sick leave in an amount up to a maximum of $511 per day, and $5,110 in the aggregate over the period the April 16 Order is in effect. Each “leave” hour is compensated at the highest of: (1) the worker’s regular pay rate in the last pay period; (2) California’s minimum wage; or (3) the local minimum wage to which the worker is entitled. Additional requirements and limits are detailed in the April 16 Order. You should review the terms of the order to evaluate your particular leave benefit, as the amount to which you may be entitled may vary based on your employment (e.g. full-time status, number of hours worked in a particular period) and other aspects of your employer’s current leave plan.

Newsom reportedly signed the April 16 Order after discussions with unions representing food service workers as well as the state legislature’s Latino caucus. Newsom is quoted as stating that the food sector has “been hard hit by strife, by challenges in terms of health and safety, by concerns around what is happening within food processing plants and meatpacking plants.” The widely reported issues faced by grocery and delivery workers are just the tip of the iceberg. Severe issues have also been brewing for weeks for workers at meat processing and packing plants (Smithfield Foods, Inc.; JBS USA; Tyson Foods, Inc.; Cargill, Inc.; Sanderson Farms, Inc.; and others), as well as for farmworkers. Indeed, COVID-19 has impacted every aspect of the food sector.

While it is hoped that something akin to the April 16 Order will be in place during all phases of the COVID-19 outbreak, the paid sick leave portion of the order is only effective during a statewide stay-at-home order. More broadly, however, the April 16 Order also permits workers at food facilities to wash their hands every 30 minutes, or as needed, to increase proper sanitation measures.

Newsom has provided that, in addition to all remedies available under existing laws (e.g. laws prohibiting unfair business practices), the California Labor Commissioner has the power to enforce the provisions of the April 16 Order.

Separately, in announcing the April 16 Order, California also emphasized new California Department of Industrial Relations Division of Occupational Safety & Health (“Cal/OSHA”) Guidance to help prevent infection in grocery stores (“Cal/OSHA Grocery Guidance”). While the Cal/OSHA Grocery Guidance does not impose new legal obligations, it contains a useful summary of current recommendations and certain current obligations imposed on employers. Please see our other post on the topic of personal protective equipment (“PPE”) for essential workers.

If you have any questions about the April 16 Order that are specific to your employment situation, please feel free to contact Haeggquist & Eck, LLP for more information and to arrange a free consultation with one of our attorneys.

To schedule your free initial consultation, contact us online or call (619) 342-8000 today!

The COVID-19 pandemic has left millions of California employees wondering if they are entitled to unemployment insurance (“UI”) benefits. This post addresses how the UI program works in California, what new laws impact the UI program, and many common eligibility questions that may pertain to your situation (see the Frequently Asked Questions section below).

How Does Unemployment Insurance (“UI”) Work?

Generally, the UI program provides financial benefits for employees who lose work due to no fault of their own. The program is administered by the State you live in and overseen by the U.S. Department of Labor (“DOL”). In California, UI benefits are administered by the Employment Development Department (“EDD”) who processes UI claims and determines eligibility. Generally, to receive UI benefits, you must meet all eligibility requirements when filing a claim and when certifying for benefits.

Eligibility requirements include:

1. Your past earnings must meet certain minimum thresholds;
2. You must be unemployed without fault of your own; and
3. You must be able, available, and actively seeking work

If approved, the EDD determines your weekly benefit amount based on your past earnings, ranging from $40 up to $450 per week, which is generally capped at 26 weeks. To get an estimate of what you will receive, you can use the UI Benefit Calculator. Although, as set forth below, due to COVID-19, the weekly benefit amount has increased by $600 and the payments are extended to 39 weeks. You can file a claim for UI benefits online, by phone, by fax, or by mail. However, the EDD strongly recommends you file online.

New Laws Expanding UI Benefits

Waiver of One-Week Waiting Period: Generally, there is a one-week waiting period for individuals obtaining UI benefits. However, due to COVID-19, California’s Governor issued an emergency proclamation waiving the non-payable one-week period for regular UI benefit payments as a result of COVID-19. This means you can be paid benefits for the first week you are unemployed because of COVID-19.

Extra UI Benefits: On March 27, 2020, the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”) was signed into law. Among other provisions, the CARES Act temporarily expands UI benefits through the creation of several programs (discussed below):

1. Federal Pandemic Unemployment Compensation (“FPUC”): Under the FPUC, individuals who are eligible for UI benefits will receive an extra $600 weekly benefit in addition to the amount the individual otherwise would be entitled for all weeks of unemployment. In California, only the weeks of a claim between March 29, 2020 and July 31, 2020 are eligible for the extra $600. The EDD started issuing the extra benefit amount on April 11, 2020.
2. Pandemic Emergency Unemployment Compensation (“PEUC”): The PEUC provides for an additional 13 weeks of UI benefits for individuals who have exhausted benefits they are otherwise entitled. Therefore, in California, eligible individuals now may receive UI benefits up to a maximum of 39 weeks, whereas previously benefits were capped at 26 weeks. The extended benefits are available from Feb. 2-Dec. 31, 2020 (depending on when you became directly impacted by COVID-19).
3. Pandemic Unemployment Assistance (“PUA”): The PUA expands coverage to certain workers who traditionally are not eligible for UI benefits, such as individuals who are self-employed, independent contractors, have limited work history, or who have exhausted all rights to regular or extended unemployment benefits, among others. This is particularly important for those who work in the gig economy, who work largely as independent contractors and freelancers.

Frequently Asked Questions

Can I collect UI benefits if my employer reduces my hours or shuts down because of COVID-19?

Yes. You can be eligible for partial wage replacement benefits if your employer reduces or temporarily cuts your hours. If your hours are temporarily reduced or cut due to COVID-19, but expected to return to work within a few weeks, you are not required to actively seek work each week. However, you must remain able, available, and ready to work during the unemployment period for each week of benefits claims and meet all other eligibility requirements.

How much can I collect in UI benefits?

Benefits range from $40-$450 per week. Depending on your awarded amount, the number of weeks you can potentially receive benefits ranges from 13-26 weeks if you are paid at your full weekly benefit amount. Although, because of COVID-19, you are entitled to an extra $600 a week, between March 29, 2020 and July 31, 2020, and an additional 13 weeks of pay through Dec. 31, 2020. Claimants do not need to do anything to receive this extra funding. The EDD will automatically add the full $600 to each week of current benefits that are paid every two weeks, as long you are eligible for at least $1 in a regular payment each week.

Can I file an UI claim if I am self-employed, an independent contractor, or a gig worker?

Generally, if you are self-employed, an independent contractor, or a gig worker, and you are unable to work or have had your hours reduced, you may be eligible for UI benefits only under a few scenarios:

• You chose to contribute to UI elective coverage and previously paid the required contributions;
• Your past employer made contributions on your behalf over the past five to 18 months; or
• You have been misclassified as an independent contractor instead of an employee.

However, as a result of the passage of the CARES Act, business owners, self-employed individuals, independent contractors, gig workers, or those who have exhausted all rights to such benefits, may be eligible for UI benefits if you also meet one of the following criteria:

• You have been diagnosed with COVID-19 or are experiencing symptoms of COVID-19 and are seeking a medical diagnosis.
• You are unable to work because a health care provider advised you to self-quarantine due to concerns related to COVID-19.
• A member of your household has been diagnosed with COVID-19.
• You are providing care for a family member or a member of your household who has been diagnosed with COVID-19.
• A child or other person in the household for whom you have primary caregiving responsibility is unable to attend school or another facility that is closed as a direct result of COVID-19 and the school or facility care is required for you to work.
• You became the breadwinner or major support for a household because the head of the household has died as a direct result of COVID-19.
• You must quit your job as a direct result of COVID-19.
• Your place of employment is closed as a direct result of COVID-19.
• You were scheduled to start a job that is now unavailable as a direct result of the COVID-19 public health emergency.
• You are unable to reach the place of employment as a direct result of the COVID-19 public health emergency.
• If you work as an independent contractor with reportable income, you may also qualify for PUA benefits if you are unemployed, partially employed, or unable or unavailable to work because the COVID-19 public health emergency has severely limited your ability to continue performing your customary work activities, and has thereby forced you to stop working.

The EDD will begin accepting online applications for this program on April 28, 2020.

Note, however, if you are not a United States citizen, you cannot be paid PUA benefits unless you were legally permitted to work in the U.S. at the time services were performed.

What UI benefits are available if I am subject to a quarantine, but not ill?

If your hours are reduced due to a quarantine, you were separated from your employer during a quarantine, or you were subject to a quarantine required by a medical professional, you can be eligible for UI benefits if you have enough earnings over the past 12-18 months and meet other eligibility requirements.

If I choose to stay home from work because I am at high risk for complications from COVID-19 (e.g., an underlying health condition), am I eligible for UI benefits?

Yes, you may be eligible for UI benefits if you choose to stay home. Once you file your claim, the EDD will contact you if it needs more information.

Am I eligible for UI benefits if I must miss work because my child’s school shuts down?

Yes, you may be eligible for UI benefits. The EDD representatives, however, will determine eligibility on a case-by-case basis. For example, you may be eligible for UI benefits if your employer has temporarily allowed you to work less than full-time hours due to your childcare situation. In such case, you may be eligible for reduced benefits, as long as you meet all other eligibly requirements.

Am I still entitled to UI benefits if I can work remotely from home?

No, unless your working hours are reduced through no fault of your own.

Can I collect UI benefits and Disability benefits at the same time?

No. While you have the right to apply for both UI and Disability benefits at the same time, you can only collect payments under one benefit program at a time. The EDD will review the facts and determine your eligibility for the appropriate program.

Am I entitled to UI benefits if I am fired because I refuse to work during the COVID-19 pandemic?

It depends. If you refuse to work because you are at a higher risk of complications from COVID-19 (e.g., an underlying health condition), or because your worksite is unsafe or unhealthy because of COVID-19, you may be eligible for UI benefits, if you meet all other eligibility requirements. Once you file your claim, the EDD will determine eligibility. If your workplace is objectively unsafe or unhealthy because of COVID-19 and your employer fired you for refusing to work, you may have a wrongful termination claim. Contact the attorneys at HAE for more information.

Am I entitled to UI if I quit a job because I am not comfortable working because of the COVID-19 pandemic?

It depends. If you refuse to work because you are at a higher risk of complications from COVID-19 (e.g., an underlying health condition), or because your worksite is unsafe or unhealthy because of COVID-19, you may be eligible for UI benefits, if you meet all other eligibility requirements. Once you file your claim, the EDD will determine eligibility.

If you are forced to quit your job because your workplace is objectively unsafe or unhealthy because of COVID-19 and your employer is refusing to make it safe, you may have a wrongful constructive discharge claim.

To schedule your free initial consultation, contact us online or call (619) 342-8000 today!

As a general rule, your employer cannot tell others you have COVID-19 without your consent. Under the Americans with Disabilities Act (“ADA”), an employer must maintain confidentiality of its employees’ medical information. Similarly, the California Confidentiality of Medical Information Act requires employers to protect the privacy and security of any medical information relating to its employees.

The Centers for Disease Control and Prevention (“CDC”) also provided guidance on this issue, urging employers to “maintain confidentiality of people with confirmed coronavirus infection.”

Although your employer cannot disclose your identity and medical information, your employer should inform your workplace that an employee has been diagnosed with COVID-19 and identify steps taken to address the issue. The CDC states that employers “should inform fellow employees of their possible exposure to COVID-19 in the workplace but maintain confidentiality as required by the Americans with Disabilities Act (ADA).” While your employer may reach out to folks in your department to evaluate potential exposure, your employer must reasonably avoid other references that would permit a manager or co-worker to guess that you have been infected.

Finally, other privacy rights have been impacted by the pandemic exigency (e.g., HIPPA), so there may be circumstances where your employer may be required to disclose private information to public health officials, such as the CDC. However, the general rule still stands to protect your medical privacy rights in the workplace.

Contact Us for Legal Assistance

If you believe your rights were violated at work, reach out the Haeggquist & Eck, LLP as soon as possible for help. We can support your claim if you believe your employer disclosed sensitive or identifying information about your exposure to the coronavirus or COVID-19 status. Your employer is limited in what it can disclose to your coworkers or clients, and you can assert your rights with our legal assistance.

Schedule a free initial consultation with an attorney from Haeggquist & Eck, LLP soon by contacting us online or calling (619) 342-8000.

As of today, cities and states are reaching the peak of their curves, and Americans can finally see a semblance of light at the end of the COVID-19 tunnel. But for many Americans, the end of that tunnel will mean the beginning of economic hardship. Although federal and state laws provide public benefits for “traditional” employees, many of these benefits are ordinarily non-existent or severely lacking for independent contractors and self-employed workers. Fortunately, the federal and state governments have taken significant measures to protect millions of Americans who would otherwise be left high and dry.

Unemployment Insurance Benefits

Self-employed, part-time, and gig workers comprise as much as one quarter of all workers in California. Thankfully, following the passage of the CARES Act last month, independent contractors and the self-employed who are affected by COVID-19 can now apply for unemployment benefits. To be eligible for benefits under the CARES Act, a non-traditional worker must meet one of the following criteria:

• You have been diagnosed with COVID-19 or experience COVID-19 symptoms and you’re seeking a medical diagnosis;
• You are unable to work because your doctor advised you to self-quarantine because of COVID-19;
• A member of your household is diagnosed with COVID-19;

• You are a caregiver for a family member or a member of your household who has been diagnosed with COVID-19;
• A child or other person in the household for whom you have primary caregiving responsibility cannot go to school or daycare because of COVID-19 and the school or daycare is required for you to work;
• You are now the sole breadwinner of the household because the head of the household died as a result of COVID-19;
• You quit because of COVID-19;
• Your job closed because of COVID-19;

• You were supposed to start working at a job that closed because of COVID-19;
• You cannot get ahold of your employer because of COVID-19; or
• If you work as an independent contractor with reportable income, and you are unemployed, partially employed, or unable or unavailable to work because COVID-19 severely limited your ability to continue performing your customary work activities and has thereby forced you to stop working.

As discussed in our previous blog entry, the CARES Act:

• Gives eligible workers 13 additional weeks of unemployment benefits. Because California ordinarily provides 26 weeks of unemployment benefits, Californians may now receive up to 39 weeks of benefits; and
• Provides unemployed workers an additional $600, on top of what they receive in unemployment compensation per week, through July 31, 2020.

The California Employment Development Department (“EDD”) is still developing a new program for self-employed workers and independent contractors. As such, the EDD is asking self-employed workers and independent contractors wait to apply until after the EDD establishes a separate program for these ordinarily ineligible workers. Nevertheless, the EDD recognizes all eligible workers have a right to file for unemployment benefits even though the State is still working out the kinks.

Information on how to file an unemployment claim can be found here: https://www.edd.ca.gov/unemployment/UI_Online_File_a_Claim.htm

Paid Sick Leave

Under the Families First Coronavirus Response Act (“FFCRA”), self-employed workers are entitled to paid sick leave in the form of a tax credit allowed against the worker’s self-employment tax. Importantly, “eligible self-employed individuals” under the FFCRA include individuals who “would be entitled to receive paid leave during the taxable year pursuant to the Emergency Paid Sick Leave Act if the individual were an employee of an employer.”

In other words, this provision could also apply to some independent contractors who would have otherwise been entitled to sick leave. The credit allows workers to take up to 10 paid sick days, and sick leave wages are capped at $511 per day for their own use and up to $200 a day to care for others and any other substantially similar condition.

Further information about the FFCRA can be found in our previous blog entry.

If you think you need legal assistance from an employment law attorney to fight for your rights and fair compensation, reach out to the attorneys of Haeggquist & Eck, LLP for help!

We can be contacted online or by phone at (619) 342-8000.