Labor Relations and Legal Newsletter – Winter 2022

This Labor Relations and Legal Update highlights some salient changes that either recently took effect in 2021 or will take effect in 2022. The material recapped in this newsletter is general information we are providing as a courtesy on subjects that may be of interest to you. We encourage you to consult with your legal advisors about the applicability of these changes and updates to your organization’s specific circumstances, and how best to handle them.

Legal Updates: Prior Legal Alerts

It is important to Entertainment Partners (EP) that we keep our clients up-to-date with the latest information as it becomes available, highlighting major enacted legislation, “best practice” guidance, and current industry practices. Please see prior EP alerts we have released since our last newsletter for more information on the following topics:

• New York City Imposes Mandatory Vaccination Requirements for Private Employers

• New York State Makes Retirement Savings Program Mandatory

• Federal OSHA Issues Emergency Vaccinate-Or-Test Standards

Legal Updates: California

Cal/OSHA Readopts Emergency Temporary Standards, Effective January 14, 2022

On December 16, 2021, California’s Occupational Safety and Health Standards Board adopted its second set of revisions to Cal/OSHA’s COVID-19 Emergency Temporary Standards (ETS). The readopted ETS became effective on January 14, 2022. While the readopted ETS still incorporates a myriad of the same safety protocols that appeared in the prior version of the ETS, there are certain departures. Testing must now be made available by employers, at no cost and during paid time, to asymptomatic fully-vaccinated employees who are close contacts of a positive COVID-19 case at the workplace.

Also, the readopted ETS required that employees who recently recovered from COVID-19 and those who are fully vaccinated are not required to be excluded from the workplace after close contact (within six feet of a COVID-19 case for a cumulative total of 15 minutes or greater in any 24-hour period during the “high-risk exposure period”), if the employee wears a face covering and maintains six feet of physical distancing for 14 calendar days following the last date of contact. The “high-risk exposure period” for those exhibiting symptoms is two days before they first develop symptoms until ten days after with at least 24 hours fever-free and improved symptoms. For those not exhibiting symptoms, the period is two days before until 10 days after they tested positive.

The return-to-work criteria prescribed by the readopted ETS was superseded in early January 2022 by updated isolation guidance issued by the California Department of Public Health. The new criteria for returning to the workplace after either testing positive for COVID-19 or being exposed to a positive case now takes into account the booster and can be found here.

California Updates Requirements for COVID-19 Exposure Notification and Reporting Requirements at the Workplace

On October 5, 2021, California enacted AB 654, which immediately updated the COVID-19 exposure notification and reporting requirements for employers. AB 654 requires that employers provide:

1. Written notice to all employees, and the employers of subcontracted employees, who were on the premises at the same worksite as the positive COVID-19 case within the infectious period that they may have been exposed to COVID-19. This notice must reasonably be anticipated to be received by the employee within one business day of sending.
2. Information to all employees who were on the premises at the same worksite as the qualifying individual within the infectious period and the exclusive representative, if any, regarding COVID-19-related benefits to which the employee may be entitled under applicable federal, state, or local laws, including, but not limited to, workers’ compensation, and options for exposed employees, including COVID-19-related leave, company sick leave, state-mandated leave, supplemental sick leave, or negotiated leave provisions, as well as anti-retaliation and anti-discrimination protections of the employee.
3. Notice of the cleaning and disinfection plan that the employer is implementing, per the CDC and COVID-19 prevention program required by the Cal/OSHA COVID-19 Emergency Temporary Standards (ETS), to all employees who were on the premises at the same worksite as the positive COVID-19 case within the infectious period, and the employers of subcontracted employees who were on the premises at the same worksite as the positive COVID-19 case within the infectious period. This notice will no longer be required to go to any employee who exclusively teleworks.

California Expands Entitlement to Leave Under the CFRA

On September 27, 2021, Governor Newson approved AB 1033, which has expanded the California Family Rights Act (CFRA) to incorporate leave to care for a parent-in-law within the definition of family care and medical leave. As a result, employers covered by CFRA must now grant eligible employees up to 12 weeks of job-protected leave annually to provide care to a parent-in-law with a serious medical condition in addition to a child, parent, grandparent, grandchild, sibling, spouse, or domestic partner with a serious medical condition.

Increased Employee Protections Enacted for Various Employment-Related Agreements

Under existing law, settlement agreements cannot restrict employees from disclosing underlying factual information of settled sexual harassment claims. Beginning January 1, 2022, this restriction will expand to settled discrimination and other categories of settled harassment claims prohibited under the California Fair Employment & Housing Act (FEHA). Additionally, current prohibitions on employers using employment agreements to release rights or curb disclosure of sexual harassment or discrimination factual allegations as a condition of employment will now broaden to other FEHA-prohibited harassment or discrimination. Finally, separation agreements (i) can no longer contain non-disparagement or confidentiality provisions that interfere with disclosure of conduct violating the FEHA, (ii) must contain a special provision in the non-disparagement/confidentiality clause reinforcing the separating employee’s right to disclose unlawful workplace acts, and (iii) must notify the separating employee of their right to consult an attorney before signing and right to a reasonable consideration period of at least 5 business days before signing.

Grand Theft Classification Expanded for Wage Payment Violations

The normal punishment for unpaid or late-paid wages is monetary penalties. The additional path of misdemeanor or felony criminal prosecution has been available for years, but comparatively is rarely used. The California Legislature has signaled law enforcement agencies to consider the criminal route more widely by widening the definition of grand theft to include wage theft above an aggregate of $2,350 involving two or more employees in a 12-month consecutive look-back instead of the existing $950-plus per employee standard. As a result of the aggregation add, small amounts in larger frequency (for example, $50 unpaid across 50 employees in a payroll batch) could trigger grand theft prosecution avenue for authorities that previously did not exist.

SB 606 Grants Cal-OSHA Enhanced Authorities in California Starting January 1, 2022

Effective January 1, 2022, Cal-OSHA has enhanced authority to investigate and fine employers for new categories of violations called “egregious violations” and “enterprise-wide violations” in California pursuant to SB 606. An egregious violation occurs when any of the following occurs: (i) the employer, intentionally through conscious, voluntary action or inaction, made no reasonable effort to eliminate a known violation; (ii) violations resulted in worker fatalities, three or more hospitalizations, or a large number of injuries or illnesses; (iii) violations resulted in persistently high rates of worker injuries or illnesses; (iv) the employer has an extensive history of prior violations; (v) the employer has intentionally disregarded its health and safety responsibilities; (vi) the employer’s conduct amounts to clear bad faith in the performance of its duties; or (vii) the employer has committed a large number of violations so as to undermine significantly the effectiveness of any safety and health program that may be in place. The penalty for egregious violations or enterprise-wide violations ranges from $8,908 up to $124,709.

Newly-Established California Privacy Protection Agency’s CPRA Rulemaking Update

Established by the California Privacy Rights Act (CPRA), the California Privacy Protection Agency (CPPA) has been tasked with completing its rulemaking activities and adopting final regulations by July 1, 2022. To that end, the CPPA kicked off its preliminary rulemaking activities by extending a broad invitation for public comment on “any area on which the [CPPA] has authority to adopt rules” and, specifically, “on new and undecided issues not already covered by the existing CCPA regulations.” The CPRA received significant feedback from California stakeholders and published the submissions on its website. Much of the feedback centered around the subjects that the CPRA specifically called out in its initial invitation (e.g., audits and risk assessments, automated decision making, the right to correct inaccurate information, use of sensitive personal information), but some stakeholders were quick to surface other unresolved issues (e.g., expiring exemption of employee data from the scope of CCPA). We will be closely monitoring the CPRA’s rulemaking activities, along with all privacy-related legislative trends, to stay ahead of the rapidly changing privacy landscape and its impact on the entertainment production industry.

Legal Updates: Multi-State

New York City Vaccine Mandate on Private Employers

Effective December 27, 2021, New York City implemented a new mandate on private employers to require all of their employees working within the geographic boundaries of the City to be vaccinated against COVID-19. Employees must have received their first dose by December 27, 2021, and a second dose (if taking a two-dose vaccine) within 45 days of the first dose. A worker who has not received a first dose by December 27 or a second dose within 45 days of the first dose must be excluded from the workplace (subject to limited exceptions, as discussed below). Failure to comply with the vaccine mandate can subject an employer to a $1,000 fine, and penalties escalate for repeat violations.

Employers may verify workers’ proof of vaccination using one of three options: (1) making a photocopy or photograph of the vaccination proof; or (2) creating their own paper or electronic records, which must include the following information: (a) the worker’s name; (b) whether the worker is fully vaccinated; and (c) for a worker who submits proof of the first dose of a two-dose vaccine, the date by which the proof of the second dose will be provided; or (3) visually checking each worker’s proof of vaccination before they enter the workplace each day but the employer must keep a record of each such verification.

Primary exceptions to the vaccine mandate include: (1) workers who are granted an exemption and reasonable accommodation by their employer because of a medical disability or sincerely-held religious belief that prevents the employee from being vaccinated; (2) workers that work alone and do not have in-person contact with co-workers or otherwise; and (3) workers that only enter the workplace for a quick and limited purpose.

New York City Requires Paid Time Off for Parents/Guardians to Vaccinate Kids Against COVID-19

On December 24, 2021, New York City enacted a new law applicable to employees working within the City limits that requires employers to provide four hours of paid leave to employees with minors or children regardless of age who are “incapable of self-care because of a mental or physical disability” to obtain COVID-19 vaccination for those children and another four hours for the child’s recovery from side effects. This paid leave is separate and in addition to the paid leave already available under NYC’s Earned Sick and Safe Time Act, and it cannot be waived by a collective bargaining agreement. The City’s new mandate, which applies retroactively to November 2, 2021, expires on December 31, 2022.

Employees cannot be required to work additional hours to make up for the hours of leave or to find a replacement employee to cover their work. Depending on the violation, penalties against employers for each instance of violation or retaliation range from $250 to $2,500. In addition, employees who were entitled to but not paid for the leave are entitled to three times the wages that should have been paid or $250, whichever is greater.

New York State Requires Notice of Electronic Monitoring for All Private Employers

Beginning May 7, 2022, all private employers with a place of business within the State of New York will be required to provide new hires with written notice of any electronic monitoring the employer conducts on its workforce. Covered monitoring activity includes the monitoring or interception of employee telephone conversations, emails, and Internet usage through any device or system. The Act exempts monitoring processes designed to manage the volume or type of voicemails, emails, or Internet usage by a private employer’s workforce where such monitoring (i) does not target a particular individual’s telephone conversations, emails, or Internet usage, and (ii) is for the sole purpose of computer system maintenance or protection.

Notice must be given to all new hires upon their start date. The notice must (i) be in writing, (ii) be in an electronic record or other electronic form, (iii) specifically state that “any and all telephone conversations or transmissions, electronic mail or transmissions, or Internet access or usage by an employee by any electronic device or system, including but not limited to the use of a computer, telephone, wire, radio or electromagnetic, photoelectronic or photo-optical systems may be subject to monitoring at any and all times and by any lawful means,” and (iv) be acknowledged by the employee in writing or electronically.

Non-compliance can subject the private employer to a maximum civil penalty that ranges from $500 for a first offense, $1,000 for a second offense, and $3,000 for a third and each subsequent offense.

Illinois SB 1480 Establishes Pay Data Reporting Obligations for Private Employers with Over 100 Employees

On March 23, 2021, Illinois Governor J.B. Pritzker amended the Equal Pay Act by signing SB 1480 into law, which requires private employers with over 100 employees to report EEO-1 and pay data to the Illinois Secretary of State. SB 1480 mandates new obligations for employers with more than 100 employees in Illinois to biannually report pay data, submit equal pay registration certificates, and certify compliance with the State’s equal pay laws. The information provided will be made public, but the Illinois Department of Labor (IDOL) reportedly has taken measures to ensure there is no way to identify the employees included in the data.

Businesses established prior to March 23, 2021, must obtain an Equal Pay registration certificate between March 24, 2022 and March 23, 2024, to certify that they are complying with the Illinois Equal Pay Act. Qualifying businesses that begin operating after March 23, 2021, must apply for the certificate within three years, but not before January 1, 2024. Employers are required to obtain a certificate every two years after receiving their initial certificate.

Massachusetts Changes Paid Family Medical Leave (PFML) Contribution Rates and Notifications

For about the last 18 months, employers with Massachusetts employment activity have deducted from those employee paychecks and contributed an employer portion as well that cumulatively equals 0.75% for PFML. The total contribution rate, effective January 1, 2022, is decreasing to 0.68% with corresponding employee withholding and employer contribution adjustments. As a result, the new hire employee notifications that employers need to distribute must reflect this change. The Department of Paid Family & Medical Leave issued an abbreviated rates update for employers to distribute to current employees who started before the 2022 rate change (see link).

New Mexico Paid Sick Leave Effective July 1, 2022

Starting July 1, 2022, New Mexico will become one of many places in the U.S. that requires paid sick leave. One hour of paid sick leave will accrue for every 30 hours worked. A maximum of 64 sick leave hours can be accrued and used per year, but employers can opt for a higher limit. Unused sick leave carries over from year to year, but employers need not provide more than 64 hours per year. Pay out of unused sick leave is not required upon the end of employment, but if rehired within 12 months, then previously accrued but unused sick leave is reinstated. The sick leave can be used for the employee’s own medical needs or for a family member’s as well as for certain safety-related issues, including to seek help for domestic abuse, sexual assault, and stalking. The sick leave cannot be waived by a collective bargaining agreement. A notice of the employee’s rights under the law must be provided at the time of hire, and a poster with such information must also be posted at the workplace. Monetary penalty for each violation starts at $250 and increases depending on the nature of the violation. The statute is available here.

Washington Long-Term Care Paycheck Deduction Collections Halted

In mid-2021, the Washington Legislature passed the first law of its kind establishing a long-term care program for eligible individuals that would be funded 100% from employee paycheck contributions. The program benefits would not activate until 2025, but collections for funding were to start in January 2022. The Governor and legislative leaders jointly announced this winter that the program is not ready to start collections and would be refined to accommodate various concerns; therefore, employers have been instructed to postpone employee paycheck deductions until corrective legislation is enacted, which is estimated to be in spring 2022 (see link).

Minimum Wage Updates

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Labor Relations Updates