Labor Relations and Legal Newsletter - Winter 2023

Labor Relations and Legal Newsletter - Winter 2023

This Labor Relations and Legal Update highlights some salient changes that either recently took effect or will take effect shortly. 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.

LEGAL UPDATES: CALIFORNIA 

California Emergency Supplemental COVID-19 Sick Leave Expired, but Local Laws Remain

On January 1, 2023, California’s emergency supplemental COVID-19 sick leave expired. California first enacted this emergency COVID-19 sick leave in September 2020. The original intention appeared for it to last only a few months. But as COVID-19 persisted, the State extended the requirement several times.  Because it is not uncommon for the State to revive a COVID-19 law a few months after its expiration, we will monitor this issue for any further developments. 

Though the State’s COVID-19 supplemental sick leave has expired, it is important to be aware of local laws in your geographic area. For example: 

• If you have employees who work in the City of Los Angeles, the City has its own emergency COVID-19 sick leave law applicable only to large employers with 500 or more employees who work inside the City’s limits or 2,000 employees nationwide. The Los Angeles City Council has voted to end the City’s COVID-19 State of Emergency declaration as of February 1, 2023, which in turn causes the City’s emergency COVID-19 sick leave to end two weeks later (on February 15, 2023). 
• Long Beach has its own emergency COVID-19 sick leave law applicable within Long Beach city limits to employers with 500 or more employees nationwide. As of the date of this article’s publication, Long Beach has not announced an end date. 
• A few months ago in San Francisco, voters voted to permanently enact public health emergency leave, which takes the place of the expired California emergency supplemental COVID-19 sick leave and expands coverage to more qualifying events (please see prior alert on this matter).   

New Privacy Rights for California Employees Effective January 1, 2023

Beginning January 1, 2023, California employees can exercise new privacy rights under the California Privacy Rights Act (CPRA) and, accordingly, their covered employers will face new compliance obligations. The new rights for California employees will include, among others: the right to know, right to rectification, right to deletion, right to data portability, and right to limit use and disclosure of sensitive personal information. Employers will need to evaluate employee requests to exercise their rights to determine their obligations under the CPRA, as employers may have certain bases to deny employee rights requests. For example, should an employee attempt to exercise their right to deletion, the employer could rightfully deny that request to the extent that certain personal information is required to carry out the employment relationship (to process payroll, provide benefits, etc.), or because of statutory requirements that dictate the retention of certain employment-related information. This is a significant change for employers with employees in California; for some it will require a re-assessment of how personal data is handled and maintained within their organization, along with changes to current policies and procedures. While compliance will not be enforced until July 1, 2023, employers can and should begin to prepare for these changes now. 

California Employees to Receive Five Days of Unpaid Bereavement Leave

Effective January 1, 2023, employers with at least five employees will be required to supply five days of unpaid bereavement leave to employees who have reached at least 30 days’ employment with the employer. Qualified decedents for the employee to take bereavement time include parent, spouse, child, grandparent, grandchild, parent-in-law, and domestic partner. Eligible employees can use sick, vacation, or other available paid leave for bereavement, and employers may not retaliate for or interfere with an employee’s use of bereavement leave. The bereavement law excludes employees covered by a collective bargaining agreement so long as it provides for its own bereavement leave as equally generous as this new law, employees receive any overtime due to them, and the employees’ regular wage rate equals at least 30% above minimum wage. 

California Appellate Court Asks California Supreme Court to Revisit Rounding Practices

Rounding of work time to tenths or even quarter hours is allowed so long as the rounding practice is neutral on its face and in practice to avoid shortage. Recently though, a California appellate court in Camp v. Home Depot invalidated rounding when the employer had exact in-out times in its possession and entreated the California Supreme Court to rescind its rule permitting neutral rounding. If the California Supreme Court takes review of the case, a decision on permissibility of rounding would still be years away.   

New “Designated Person”  Under California Family Rights Act and California Paid Sick Leave

On September 29, 2022, Government Code § 12945.2 of the California Family Rights Act (CFRA) and Labor Code § 245.5 (California Paid Sick Leave) were amended to add a “designated person” to the definition of a “family member” for whom an employee can take protected leave for up to a total of 12 workweeks in any 12-month period for family care and medical leave. The law becomes effective January 1, 2023 and applies to any California public employer or any employer with 5 or more employees.

The term  designated person” under CFRA is defined as  “any individual related by blood or whose association with the employee is the equivalent of a family relationship.” The employer may require employees to identify the “designated person” at the time they request CFRA leave and may choose to limit an employee to one designated person per twelve-month period. The full text of the new law can be viewed here.

California Extends COVID-19 Workers’ Compensation Disputable Presumption and Claims Administrator Reporting Obligations

On September 29, 2022, Governor Gavin Newsom approved Assembly Bill 1751, which extends to January 1, 2024 a disputable presumption that any injury (defined to include illness or death resulting from COVID-19) that arose between March 19, 2020 and July 5, 2020 is compensable when sustained within 14 days of when an employee performed work at the employer’s place of employment at the employer’s direction. Also, California employers have a continued obligation to report COVID-19 cases to their workers’ compensation claims administrator within three business days of when the employer knows or reasonably should know that an employee has tested positive for COVID-19. The full text of this legislation can be found here. 

California Eases Employers’ Obligations to Report COVID-19 Cases to Employees and Local Public Health Departments

On September 29, 2022, Governor Newsom approved Assembly Bill 2693, which as of January 1, 2023, will no longer require employers to notify their local public health department of each workplace outbreak and eases employers’ COVID-19 notification obligations to potentially exposed employees and employers of subcontracted employees through January 1, 2024.

With respect to the easing of employers’ COVID-19 notice obligations, employers now have the option of either continuing to provide written notification of potential COVID-19 exposures to each affected individual (as previously required under California law) or posting a notice about the potential exposure in all places where notices to employees regarding workplace rules or regulations are customarily posted. The posted notice must be displayed for 15 days and the employer would be required to keep a log of all dates such notice was posted. The full text of this legislation can be found here.  

Senate Bill 1162:  Big Impact on Employers with California Employees

In September 2022, California enacted Senate Bill 1162, which greatly impacts employers with at least one employee in California. (See previous EP Alert here.)  Significantly, this law expands an existing requirement for employers to report annual pay data about California employees to the California Civil Rights Department (formerly the California Department of Fair Employment and Housing) by no later than May 10, 2023. While the deadline is still a few months away, it is important to begin preparing for this now, as it will take weeks to study and understand the requirements and to gather and compile the necessary information. On January 19, 2023, the State released FAQs about the pay data reporting requirements. 

Separately, effective January 1, 2023, some employers are required to provide current employees and job applicants in California with information about the pay range for their job (i.e., either their current job or a job to which they are applying). On December 27, 2022, the State issued FAQs about the new pay rate disclosure requirement.    

New Cannabis Use Protection for California Workers

Effective January 1, 2024, California employees have the right to use cannabis when they are not working. The new law prohibits employers from discriminating against a person in hiring, termination, or any other term or condition of employment, or from otherwise penalizing a person based on the person’s use of cannabis when they are off the job and away from the workplace. It will also be unlawful for employers to drug-screen test for non-psychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids. That said, employees are still not permitted to possess, be impaired by, or use cannabis while on the job. Since there is no definition of what constitutes impairment in the law, this is likely to be a hotbed of dispute in cases alleging wrongful termination. 

LEGAL UPDATES: NEW YORK

New York City COVID-19 Vaccine Mandate Ended November 1, 2022

On September 20, 2022, New York City Mayor Eric Adams announced that as of November 1, 2022, private sector employers would no longer be required to mandate that all in-person workers be vaccinated against COVID-19. Accordingly, employers were no longer required to collect vaccination information relating to on-site employees. To the extent that New York City employers have kept their workforce remote to avoid mandating vaccination, they are now free to return their workforce to the office.

New York Requires Pay Transparency in Job Postings and Advertisements

On November 1, 2022, New York City’s Pay Transparency Law went into effect, which required employers with four or more employees to include the salary or hourly pay rate, or a minimum to maximum range, in each advertised position, promotion, or job transfer opportunity to be performed within the City’s boundaries. If a minimum to maximum range is used, the employer must believe in good faith that it is accurate. The range cannot be open-ended.

Not to be outdone, the State of New York followed in the City’s footsteps when, on December 21, 2022, the Governor signed into law the State’s version of a pay transparency law to take effect on September 17, 2023. While both laws require that the employer include the pay rate or pay range in the job posting, the State’s version also requires that the job posting include a job description, if such a description exists. The State’s version also applies to employers with four or more employees with at least one employee who can or will perform the work, in whole or in part, from within the State of New York. Additional information is available here in a previously published EP Legal Alert about these two laws.

New York Now Requires Employers to Provide Workplace Posters and Notices Digitally

On December 16, 2022, New York’s governor signed a bill mandating that any legally required workplace notices and posters must also be made available digitally to employees who work in the State of New York. The digital version of the notices and posters can be posted on the employer’s website or distributed to employees via email. Employers must provide notice to employees that such documents that are required to be physically posted are available digitally. A list of workplace notices and posters required per the New York State posting requirements is available here. The full version of the bill can be found here.       

LEGAL UPDATES: FEDERAL

New Protections for Pregnant and Breastfeeding Employees

On December 29, 2022, President Biden signed into law the Pregnant Workers Fairness Act (PWFA), which requires covered employers to provide reasonable accommodations for employees with medical conditions related to pregnancy and childbirth, as well as the Providing Urgent Maternal Protections for Nursing Mothers (PUMP) Act, which expands the 2010 federal breastfeeding law. The PWFA requires employers with 15 or more employees to consider employee and applicant accommodation requests related to pregnancy, childbirth, or related medical conditions the same way it has considered requests for accommodation related to disabilities under the Americans with Disabilities Act (ADA). Additionally, the PWFA prohibits employers from placing a qualified employee on a leave of absence when a different reasonable accommodation option is available. Finally, the Act prohibits retaliation against employees for seeking or taking a reasonable accommodation related to their pregnancy, childbirth, or related medical condition.

Federal Ban on Enforcement of Pre-Dispute Non-Disclosure Agreements for Sexual Harassment and Assault Claims

On December 7, 2022, President Joe Biden signed the Speak Out Act (the “Act”) into law. The Act prohibits and renders judicially unenforceable any non-disclosure or non-disparagement clauses covering sexual harassment and/or sexual assault disputes “before the dispute arises.”  The phrase “before the dispute arises” has been interpreted to reference the period before the allegation was made by the alleged victim. This new federal law applies to all covered claims filed on or after December 7, 2022. The full text of the Act can be found here. 

FTC Seeks to Prohibit Non-Compete Clauses in Both Future and Existing Employment Agreements

On January 5, 2023, the Federal Trade Commission (FTC) proposed a rule to prohibit employers from entering into non-compete clauses with any worker (whether paid or unpaid). The proposed rule defines non-compete agreements broadly as “a contractual term between an employer and a worker that prevents the worker from seeking or accepting employment with a person, or operating a business, after the conclusion of the worker’s employment with the employer.”  Examples of two “non-competes” that the FTC argues would be impermissible under this broad definition would include:  (1) a non-disclosure agreement between an employer and a worker that is written so broadly that it necessarily precludes the worker from working in the same field after the conclusion of the worker’s employment with the employer; and (2) clauses requiring the worker to pay the employer or a third party for unreasonable training costs if the employment terminates within a specified period. The FTC’s proposed rule also would require employers to rescind existing non-competes within 180 days of publication of the final rule. The FTC published the notice of proposed rulemaking in the Federal Register on January 8, 2023, triggering a 60-day public comment period that will end on March 20, 2023. The rule could thereafter be finalized by the end of the year. The full text of the proposed rule can be found here. Pending the issuance of final guidance, employers should conduct an inventory of current employee agreements so they are ready to review the applicability of the final guidance.

LEGAL UPDATES: MULTI-STATE

Reduced Paid Family Medical Leave Contributions for 2023 in Massachusetts

Massachusetts requires employers to remit employer and employee contributions to subsidize the State’s paid family medical leave program benefits. This year the combined contribution amount drops slightly from 0.68% of wages to 0.63% of wages for employers with at least 25 employees, and employers will need to provide updated employee rights notifications to their Massachusetts workforce as part of this change using the State’s model form (available here) or equivalent. We will be remitting the updated reduced rate on behalf of production company employers as of the January 1, 2023 start date.

Oregon to Launch Paid Family Medical Leave Program

Beginning January 1, 2023, Oregon has joined the number of growing states to launch a paid family medical leave program funded by employer and employee contributions. The combined contribution rate for employers with at least 25 employees is one percent of wages split 60/40 between the employee and employer, respectively. Oregon’s program provides employees with up to 12 weeks of paid leave (14 if pregnant or experiencing a health issue related to childbirth) as well as job protection. Eligible employees can begin applying for these benefits on September 3, 2023. Please see the state-issued FAQs for more information. 

Minimum Wage Updates

Click here to see the Minimum Wage Chart.

LABOR RELATIONS KEY UPDATES 

Click here to see the chart of updates to Collective Bargaining Agreements.

EP LEGAL & LABOR RELATIONS CONTACTS

• Joseph Scudiero (Senior Vice President & Chief Labor Counsel):  jscudiero@ep.com
• Bob Pucher (Vice President, Labor Relations):  rpucher@ep.com
• Scott Bishop (Vice President, Employment Law):  sbishop@ep.com
• Ed Pak (Vice President, Lead Technology & Privacy Counsel):  epak@ep.com
• Alan Wu (Director, Employment & Labor Relations Counsel):  awu@ep.com
• James Klima (Director, Contracts & Corporate Law Counsel):  jklima@ep.com 
• Pantea Lili Ahmadi (Director, Corporate & Employment Counsel):  pahmadi@ep.com
• Lydiann Betzer (Labor Relations Senior Manager):  lbetzer@ep.com
• Jade Nguyen (Privacy Manager):  jnguyen@ep.com
• Melissa Antuono (Staff Labor Relations Specialist):  mantuono@ep.com