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DFEH Issues New Publications and Forms In Connection with the Expansion of the CFRA

Posted in FMLA and Other Leaves of Absence, Labor Law, New Legislation and Regulations

On January 8, 2021 the California Department of Fair Employment and Housing (“DFEH”) issued new Posters, Fact Sheets, FAQs, and Certification forms in connection with the expansion of the California Family Rights Act (“CFRA”) and its interplay with the Pregnancy Disability Leave law (“PDL”).

As the DFEH’s Fact Sheet specific to 2021 explains, recent legislation (Senate Bill 1383) expanded CFRA in several major respects.  Below is a summary of the major changes:

  1. Employers of 5 or more employees covered by CFRA: Until December 31, 2020, CFRA applied only to private employers of 50 or more employees. Starting January 1, 2021, CFRA applies to private employers of 5 or more employees. CFRA also applies to the California state and local governments as employers.
  2. Worksite limitation eliminated: To be eligible for CFRA leave, an employee generally has to meet 3 requirements: have worked for the employer for more than 12 months, have worked at least 1,250 hours in the 12 months prior to their leave, and the employer has at least 50 employees within 75 miles of the employee’s worksite. Starting January 1, 2021, the worksite mileage requirement is eliminated.
  3. Circumstances for CFRA leave expanded: Eligible employees can take up to 12 weeks of CFRA leave to: care for their own serious health condition; care for certain family members’ serious health condition; or to bond with a new child (by birth, adoption, or foster placement). SB 1383 did not change these three categories, but it did expand the types of family members for whom CFRA leave can be taken (see #4 below). In addition, beginning January 1, 2021, CFRA leave may be taken for “a qualifying exigency related to the covered active duty or call to covered active duty of an employee’s spouse, domestic partner, child, or parent in the Armed Forces of the United States, as specified in Section 3302.2 of the Unemployment Insurance Code.”
  4. Types of family members expanded: Currently, CFRA leave may be taken to care for the serious health condition of a spouse, domestic partner, parent, minor child, or dependent adult child. Starting on January 1, 2021, employees may take leave to care for additional family members, including: an adult child, a child of a domestic partner, grandparent, grandchild, or sibling.
  5. Limitation on parents working for the same employer eliminated: Starting January 1, 2021, if both parents of a new child work for the same employer, each parent is entitled to up to 12 weeks of leave. Until December 31, 2020, employers were allowed to require parents to split 12 weeks of leave between them.
  6. Small employer mediation program created: CFRA applies the same to covered employers regardless of size. However, DFEH offers mediation to smaller employers (5-19 employees) and their employees to resolve any dispute over CFRA leave, before the employee can proceed with a court case. For more information about this program, see Government Code section 12945.21. Employers and employees wishing to take advantage of DFEH’s mediation services should contact DFEH at DRDOnlinerequests@dfeh.ca.gov or any of the channels below.
  7. Exceptions eliminated: Starting January 1, 2021, all employees who take CFRA leave have the same reinstatement rights. An exception for an employer’s highest-paid employees is eliminated.

The DFEH’s Fact Sheet on PDL also clearly explains that (unlike the FMLA), CFRA leave is not for pregnancy-related conditions, which are covered by PDL. And thus, eligible employees are entitled to take CFRA leave in addition to any leave entitlement related to pregnancy.

Finally, the DFEH also has prepared two Quick Reference Guides – one comparing entitlements under PDL, CFRA and/or FMLA for a pregnant employee, and one comparing rights and obligations under CFRA and FMLA for other qualifying reasons.

You can obtain more information and copies of the updated documents at the DFEH’s website: https://www.dfeh.ca.gov/family-medical-pregnancy-leave/

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The attorneys in Weintraub Tobin’s Labor & Employment Group have years of experience advising employers about various employment laws, including statutory leaves of absence and accommodation laws.  Feel free to reach out to any of them if you need assistance with your compliance obligations.  Stay healthy and safe.

 

New Year, New Minimum Wage

Posted in Labor Law, New Legislation and Regulations, Uncategorized, Wage & Hour

Effective January 1, 2021, California’s minimum wage rate increased to $14.00 per hour (from $13.00) for employers with 26 or more employees and $13.00 per hour (from $12.00) for employers with 25 or fewer employees. The minimum wage will continue to increase yearly until it reaches $15.00 per hour on January 1, 2022 for employers with 26 or more employees and January 1, 2023 for employers with 25 or fewer employees.

In California, many cities and counties are increasing their minimum wages faster than the state. Click here for a chart of increases set to take place in 2021.

Also note that effective January 1, 2021, the minimum salary threshold for exempt executive, administrative, and professional employees is as follows:

  • $58,240 per year (or $1,120 per week) for employers of 26 or more employees
  • $54,080 per year (or $1,040 per week) for employers of 25 or fewer employees

Further, in order to maintain their exempt status, commissioned inside salespeople will need to earn more than $21 per hour (for employers of 26 of more employees) or $19.50 per hour (for employers of 25 or fewer employees).

Mandatory Vaccines in the Workplace? New EEOC Guidance Regarding What Employers Can Do

Posted in Labor Law, New Legislation and Regulations

The FDA’s rollout of COVID-19 vaccinations has given hope to many employers that we may finally be witnessing the horizon of the pandemic. But this good news comes with a few side-effects, including the question of whether employers can require, or even encourage, their employees to get vaccinated.

To that end, on December 16, 2020, the Equal Employment Opportunity Commission (EEOC) issued guidance regarding the COVID-19 vaccinations in the workplace and the interplay with other employment laws.

Most significantly, the EEOC guidance makes clear that employers are legally allowed to mandate vaccines before employees are permitted to return to work, provided the employer makes accommodations for employees with certain disabilities and sincerely held religious beliefs.

Medical Accommodation Under Mandatory Vaccination Policy:

The Americans with Disabilities Act (“ADA”) permits employers to have an employment qualification standard that includes “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.” However, if such a standard tends to screen out individuals with a disability—something mandatory vaccination could do—then the employer must show that the unvaccinated employee would pose a substantial risk of harm to others that cannot be eliminated or reduced by reasonable accommodation. To make this determination, employers should conduct an individualized assessment of four factors: (1) the duration of the risk; (2) the nature of the severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm.

The EEOC indicated that a “direct threat” would include an unvaccinated employee who exposes other employees to the COVID-19 virus. If such an employee cannot be vaccinated due to a disability, the employer can exclude the employee from the workplace if there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce the risk caused by the unvaccinated employee.

If the threat caused by the employee cannot be reduced to an acceptable level, the employer can exclude the employee from physically entering the workplace. However, all other federal, state and local EEO laws and employee rights will need to be taken into account before such an employee can be automatically terminated. This may include providing telework, and if no such work is available, to continue to provide those eligible with leave under the Families First Coronavirus Response Act or other employer policies.

Employers must also engage in the interactive process to explore available accommodations. The EEOC made clear that the prevalence in the workplace of employees who already have received a COVID-19 vaccination and the amount of contact with others, whose vaccination status could be unknown, may impact the undue hardship consideration. Employers may rely on CDC recommendations when deciding whether an effective accommodation that would not pose an undue hardship is available.

Religious Accommodation under Mandatory Vaccination Policy:

Employers must also make accommodation for employees who refuse the vaccine for sincerely held religious beliefs, practices, or observances, unless the accommodation would place more than a de minimus cost or burden on the employer. The EEOC defines religion broadly and an employer should ordinarily assume that an employee’s expressed religious belief is sincerely held unless the employer has an objective basis for questioning either the religious nature or sincerity of the belief, practice, or observance. Like the medical accommodation, where there is no reasonable accommodation possible, then the employer may lawfully exclude the employee from the workplace. Termination is an option provided all other applicable federal, state and local EEO laws are followed.

Medical Examinations and Questioning Regarding Disabilities:

The ADA limits an employer’s ability to conduct medical examinations and request medical information from employees. The EEOC guidance clarifies that the vaccination itself is not a “medical examination” under the American’s with Disabilities Act (“ADA”). As such, if a vaccine is administered to an employee by an employer for protection against COVID-19—whether the vaccination is administered by the employer or a third-party—the employer is not seeking information about an employee’s impairments or current health status which would otherwise be prohibited under the ADA.

However, pre-screening vaccinations questions may implicate the ADA’s provision on disability-related inquiries as such questions are likely to elicit information about a disability. Because of this, the EEOC guidance clarifies that employers administering the vaccine must show that any pre-screening questions asked to employees are “job-related and consistent with business necessity.”  The EEOC guidance indicated that, to meet this standard, “an employer would need to have a reasonable belief, based on objective evidence, that an employee who does not answer the questions and, therefore, does not receive a vaccination, will pose a direct threat to the health or safety of her or himself or others.” Employers can avoid the risk of eliciting disability-related information altogether by either: (1) requiring employees to be vaccinated by their own medical provider (or any third party not affiliated with the employer), or (2) offering the vaccination on a voluntary basis.

The EEOC guidance clarified that simply asking an employee to show proof of receipt of a COVID-19 vaccination is not a “disability-related” inquiry under the ADA, because it is not likely, by itself, to elicit information about an employee’s disability. However, the EEOC guidance warns employers to be careful with follow-up questions which could elicit information about a disability. A question as simple as “why haven’t you been vaccinated?” could trigger a disability disclosure.

COVID-19 Vaccines and the Genetic Information Nondiscrimination Act (“GINA”):

Under Title II of GINA, employers may not (1) use genetic information to make decisions related to the terms, conditions, and privileges of employment, (2) acquire genetic information except in six narrow circumstances, or (3) disclose genetic information except in six narrow circumstances.

The EEOC guidance clarified that administering a COVID-19 vaccination to employees or requiring employees to provide proof that they have received a COVID-19 vaccination does not implicate Title II of GINA because it does not involve the use of genetic information to make employment decisions, or the acquisition or disclosure of genetic information. Certain COVID-19 vaccines use mRNA technology, which has raised questions regarding whether such vaccines would violate GINA. However, the EEOC guidance cites the CDC’s explanation that the mRNA COVID-19 vaccines “do not interact with our DNA in any way” and “mRNA never enters the nucleus of the cell, which is where our DNA (genetic material) is kept.” As such, requiring employees to get vaccinated, using mRNA technology or otherwise, naturally does not violate GINA’s prohibition on using, acquiring, or disclosing genetic information.

However, similar to the ADA’s limitations on medical examinations addressed above, pre-vaccination screening questions could implicate GINA if they solicit genetic information, such as family member’s medical histories.

The Labor and Employment attorneys at Weintraub Tobin continue to wish you and your family good health during these challenging times.  If we can assist you in any of your employment law needs, feel free to reach out to us.

Newsom Signs Executive Order Modifying CalOSHA’s Emergency Temporary COVID-19 Regulations

Posted in Labor Law, New Legislation and Regulations

On December 14, 2020, Governor Newsom issued Executive Order N-84-20 which, among other things, modified CalOSHA’s emergency COVID-19 regulations.

Background.

On November 30, 2020, CalOSHA’s emergency temporary regulations concerning COVID-19 prevention in places of employment (ETS) went into effect.  Among other requirements, the ETS directed employers to exclude from the workplace for 14 days those employees who have been exposed to COVID-19, reflecting the then-current guidance of the Centers for Disease Control and Prevention (CDC) and the California Department of Public Health (CDPH) on quarantining after being exposed to COVID-19.

However, on December 14, 2020, the CDPH published updated COVID-19 Quarantine Guidance that sets forth new directives, based upon updated CDC guidelines, for when employees exposed to COVID-19 who are asymptomatic may discontinue quarantine.  According to the CDPH’s updated COVID-19 Quarantine Guidance, the following timelines are applicable for quarantine for exposed employees:

  • All asymptomatic close contacts (within 6 feet of an infected person for a cumulative total of 15 minutes or more over a 24-hour period) may discontinue quarantine after Day 10 from the date of last exposure with or without testing.
  • During critical staffing shortages when there are not enough staff to provide safe patient care, essential critical infrastructure workers in the following categories are not prohibited from returning after Day 7 from the date of last exposure if they have received a negative PCR test result from a specimen collected after Day 5:
    • Exposed asymptomatic health care workers; and
    • Exposed asymptomatic emergency response and social service workers who work face to face with clients in the child welfare system or in assisted living facilities.
  • All exposed asymptomatic contacts permitted to reduce the quarantine period to less than 14 days must:
    • Adhere strictly to all recommended non-pharmaceutical interventions, including wearing face coverings at all times, maintaining a distance of at least 6 feet from others and the interventions required below, through Day 14.
      • Use surgical face masks at all times during work for those returning after Day 7 and continue to use face coverings when outside the home through Day 14 after last exposure.
      • Self-monitor for COVID-19 symptoms through Day 14 and if symptoms occur, immediately self-isolate and contact their local public health department or healthcare provider and seek testing.

Relevant Provisions of the Executive Order.

Because the public health recommendations and the requirements of the ETS should be consistent in order to protect public health, the Executive Order suspended (replaced) the quarantine/return to work periods for asymptomatic individuals as specified in the ETS with those contained in the CDPH’s COVID-19 Quarantine Guidance, or any applicable quarantine or isolation period recommended or ordered by a local health officer. However, the Executive Order expressly states that the suspension (replacement) shall not apply where an employer prevents a worker who returns to work earlier than permitted under the ETS from satisfying any of the conditions [upon return] specified by the CDPH or a local health officer.

Finally, the Executive Order directs Cal/OSHA to promptly provide public notice if it changes the quarantine or return to work periods in the emergency COVID-19 regulations.

A copy of the Executive Order can be obtained at: https://www.gov.ca.gov/wp-content/uploads/2020/12/12.14.20-EO-N-84-20-COVID-19-text.pdf

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The Labor and Employment attorneys at Weintraub Tobin continue to wish you and your families good health during the pandemic.  If we can assist you in your employment law compliance, feel free to reach out to one of us.

Lukas Clary in The Sacramento Bee: A COVID Vaccine is On The Way. Will Employers Require Their Workers Get The Shot?

Posted in Employment Contracts and Agreements, Labor Law

Sacramento Bee reporter Darrell Smith spoke with labor and employment attorney Lukas Clary for his article on the coming COVID vaccines and whether employers might require their workers to get vaccinated.

With a look at past precedent — H1N1 — we can conclude that an employer will be able to require a vaccination as a condition of employment,” said Lukas Clary, an employment law attorney at Sacramento firm Weintraub Tobin.

But, Clary added, the issue isn’t that straightforward. If the workers are represented by a union, a COVID-19 vaccination program may have to be negotiated with the employees’ bargaining unit. Employers must also consider an employee’s religious beliefs that preclude them from being vaccinated or a medical reason for not taking a vaccine. Liability is also a concern, Clary said. Even if businesses are able to require vaccinations, “It may not be what they want to do,” Clary said. “If someone had an adverse reaction (to the vaccine), it could trigger a workers’ compensation claim.

Clary’s advice: “Encourage but stop short of requiring it. That may be the safe approach for now.

Read the full article here.

Now Available! Weintraub Tobin’s 2021 Labor and Employment Virtual Seminar and Training Schedule

Posted in Disability Discrimination, Discrimination, Employee Privacy Rights, Employment Contracts and Agreements, FMLA and Other Leaves of Absence, Harassment, Labor Law, New Legislation and Regulations, Reductions in Force, Retaliation and Wrongful Termination, Trade Secrets and Competition, Uncategorized, Wage & Hour
Weintraub Tobin’s 2021 Labor and Employment Virtual Seminar and Training schedule is now available. Click here for a copy of the schedule.
If you have any questions on any of our seminars or would like to inquire on private, custom-tailored training, please contact: 
Ramona Carrillo 
(916) 558-6046.

A Deeper Dive into the New Cal/OSHA Temporary Emergency Standards for COVID-19 Prevention

Posted in FMLA and Other Leaves of Absence, Labor Law, New Legislation and Regulations

As we wrote on December 3, 2020, an emergency COVID-19 rule was adopted and approved by the California Occupational Safety and Health Standards Board. The regulation contains significant new requirements including a mandatory written “COVID-19 Prevention Program,” paid time off in certain circumstances when a “COVID-19 case” is excluded from the workplace, notice and training requirements, and requires that employers offer testing in some situations.

The emergency standards will remain in effect for 180 days unless renewed, withdrawn or replaced. It applies to all California employers covered by Cal/OSHA (generally, employers with ten or more employees at any time during the year).

This blog summarizes and highlights some of the key provisions (other than the requirement that employers develop a written “COVID-19 Prevention Program” as discussed in our previous blog).

Training.

Employers must provide training to employees (the manner of training is not specified) that includes, in summary:

  • The employer’s COVID-19 policies and procedures to protect employees from COVID-19.
  • Information regarding COVID-19-related benefits to which the employee may be entitled under applicable federal, state, or local laws.
  • Information that COVID-19 is an infectious disease, methods of transmission, that a person can be asymptomatic, and how particles can travel.
  • Methods of physical distancing and the importance of combining physical distancing with the wearing of face coverings and hand hygiene to be effective.
  • The importance of frequent hand washing.
  • Proper use of face coverings and the fact that face coverings are not respiratory protective equipment.
  • COVID-19 symptoms, and the importance of not coming to work and obtaining a COVID-19 test if the employee has COVID-19 symptoms.

Cal/OSHA has set up a training academy with online training videos available free of charge, but this, alone, will not suffice to satisfy the training requirements because employers must provide workplace-specific information to employees about the company’s own policies and procedures.

Exposure Notification Requirements.

The emergency COVID-19 regulation requires that a business notify exposed employees, their authorized representatives, independent contractors, or employers at a worksite, within one business day of a potential COVID-19 exposure at a worksite.

Exclusion of COVID Cases.

Cal/OSHA exercised authority normally reserved to the California Division of Labor Standards Enforcement to require employers to provide paid time off to “COVID-19 cases” or employees with “COVID-19 exposure” during the time that employees must exclude them from the workplace.

The emergency rule requires employers to exclude a “COVID-19 case,” defined as “a person who (1) [h]as a positive ‘COVID-19 test’ as defined [by the rule]; (2) [i]s subject to COVID-19-related orders to isolate issued by a local or state health official; or (3) [h]as died due to COVID-19.”

Employers also must “exclude employees with COVID-19 exposure from the workplace for 14 days after the last known COVID-19 exposure to a COVID-19 case.”

“COVID-19 exposure” is defined as “being within six feet of a COVID-19 case for a cumulative total of 15 minutes or greater in any 24-hour period within or overlapping with the ‘high-risk exposure period.’” The “high-risk exposure period” varies depending on whether the person develops symptoms or tests positive but remains asymptomatic:

  • If an employee develops COVID-19 symptoms after a COVID-19 exposure, the high-risk exposure period is “from [2] days before they first develop symptoms until 10 days after symptoms first appeared, and 24 hours have passed with no fever, without the use of fever-reducing medications, and symptoms have improved.”
  • If an employee tests positive but remains asymptomatic, the high-risk exposure period is “from [2] days before until [10] days after the specimen for their first positive test for COVID-19 was collected.”

Employers are not required to exclude employees from work if they “have not been excluded or isolated by the local health department … [or] if they are temporarily reassigned to work where they do not have contact with other persons until the return to work requirements … are met.” Continue Reading

California Announces New Regional Stay Home Order

Posted in Labor Law, New Legislation and Regulations

On December 3, 2020, California announced a new Regional Stay Home Order (“Order”), which will take effect no later than December 5, 2020. The Order divides California into 5 regions, and mandates that once a particular region’s ICU capacity falls below 15%, residents of that region will be ordered to remain home or at their place of residence, except for permitted work, local shopping or other permitted errands, or as otherwise authorized. Specifically, the Order prohibits private gatherings of any size, closes sector operations except for critical infrastructure and retail, and requires 100% masking and physical distancing in all others.

The regions are defined as follows:

  • Northern California: Del Norte, Glenn, Humboldt, Lake, Lassen, Mendocino, Modoc, Shasta, Siskiyou, Tehama, Trinity
  • Bay Area: Alameda, Contra Costa, Marin, Monterey, Napa, San Francisco, San Mateo, Santa Clara, Santa Cruz, Solano, Sonoma
  • Greater Sacramento: Alpine, Amador, Butte, Colusa, El Dorado, Nevada, Placer, Plumas, Sacramento, Sierra, Sutter, Yolo, Yuba
  • San Joaquin Valley: Calaveras, Fresno, Kern, Kings, Madera, Mariposa, Merced, San Benito, San Joaquin, Stanislaus, Tulare, Tuolumne
  • Southern California: Imperial, Inyo, Los Angeles, Mono, Orange, Riverside, San Bernardino, San Diego, San Luis Obispo, Santa Barbara, Ventura

The Order will remain in effect for at least 3 weeks and, after that period, will be lifted when a region’s projected ICU capacity meets or exceeds 15%. This will be assessed on a weekly basis after the initial 3 week period.  More information can be found at the state’s COVID-19 website at https://covid19.ca.gov/stay-home-except-for-essential-needs/. We will keep the blog updated as more information comes available.

 

New (and Stricter) COVID-19 Rules Implemented By Cal/OSHA – Employers Should Act Now

Posted in Labor Law, New Legislation and Regulations

On November 30, 2020, the California Division of Occupational Safety and Health’s (“Cal/OSHA”) Emergency COVID-19 Prevention Regulation went into effect. The regulations apply to all employers, employees, and to all places of employment with three exceptions: (1) workplaces where there is only one employee who does not have contact with other people; (2) employees who are working from home; and (3) employees who are covered by the Aerosol Transmissible Diseases regulation.

The emergency regulations provide additional requirements on employers in light of the COVID-19 pandemic in the following areas: COVID-19 prevention, the handling of COVID-19 infections and COVID-19 outbreaks (including major outbreaks), COVID-19 prevention in employer-provided housing, and COVID-19 prevention in employer-provided transportation to and from work. Employers should review the regulations in detail to understand how their own workplace might be affected. Among the issues addressed by the emergency regulations, are the following:

  1. Employers must adopt a written COVID-19 Prevention Program containing the following information:
    • Communication to employees about the employer’s COVID-19 prevention procedures
    • Identify, evaluate and correct COVID-19 hazards
    • Physical distancing of at least six feet unless it is not possible
    • Use of face coverings
    • Use engineering controls, administrative controls and personal protective equipment as required to reduce transmission risk
    • Procedures to investigate and respond to COVID-19 cases in the workplace
    • Provide COVID-19 training to employees
    • Provide testing to employees who are exposed to a COVID-19 case, and in the case of multiple infections or a major outbreak, implement regular workplace testing for employees in the exposed work areas
    • Exclusion of COVID-19 cases and exposed employees from the workplace until they are no longer an infection risk
    • Maintain records of COVID-19 cases and report serious illnesses and multiple cases to Cal/OSHA and the local health department, as required
  1. Guidance on dealing with employees who are COVID-19 positive, or who have been exposed to the illness. Specifically, employers are directed to exclude COVID-19-positive employees and those who have been exposed to COVID-19 from the workplace. If the employee is able and available to work, the employer must continue to provide the employee’s pay and benefits, unless the employer can establish the employee’s exposure was not work-related. The employer may require the employee to exhaust paid sick leave benefits before providing exclusion pay, and may offset payments by the amount an employee receives in other benefit payments.
  2. Specific guidance on what additional actions employers must take amidst a major COVID-19 outbreak, which is defined as a covered workplace that has 20 or more COVID-19 cases within a 30 day-period.

Employers can find more information on the Cal/OSHA COVID-19 Guidance and Resources website here, (link https://www.dir.ca.gov/DIRNews/2020/2020-99.html. In addition, FAQ’s on the emergency regulations can be found here (link https://www.dir.ca.gov/dosh/coronavirus/COVID19FAQs.html).

These emergency regulations are now in effect. Employers should immediately review their Cal/OSHA COVID-19 Prevention Plans to ensure compliance with the new regulation. In many cases, employers will need to revise and update their plans, and payroll procedures previously implemented, in order to comply with these new emergency regulations.

The Labor and Employment attorneys at Weintraub Tobin continue to wish you and your family good health during these challenging times.  If we can assist you in any of your employment law needs, feel free to reach out to us.

 

DFEH Issues Frequently Asked Questions Regarding California’s New Pay Data Reporting Law Under the Equal Pay Act

Posted in Labor Law, New Legislation and Regulations, Wage & Hour

On September 30, 2020 Governor Newsom signed Senate Bill 973 which requires large employers to report certain pay and other data to the Department of Fair Employment and Housing (DFEH) by March 31, 2021 and annually thereafter. On November 2, 2020, the DFEH issued certain FAQs regarding this new obligation and announced that it anticipates rolling out a secure online reporting system in advance of the 2021 filing deadline.

Below are a few of the DFEH’s FAQs.

Why does California require large employers to report pay data to DFEH?

(11/02/2020) In SB 973, the California Legislature required employers of 100 or more employees to report to DFEH pay and hours-worked data by job category and by sex, race, and ethnicity (hereinafter “pay data”). In enacting this legislation, the Legislature found that “[d]espite significant progress made in California in recent years to strengthen California’s equal pay laws, the gender pay gap persists, resulting in billions of dollars in lost wages for women each year in California. Pay discrimination is not just a women’s issue, but also harms families and the state’s economy. In California, in 2016, women working full time, year round made a median 88 cents to every dollar earned by men, and for women of color, that gap is far worse. Although there are legitimate and lawful reasons for paying some employees more than others, pay discrimination continues to exist, is often ‘hidden from sight,’ and can be the result of unconscious biases or historic inequities.”

By creating a system by which large employers report pay data annually to DFEH, the Legislature sought to encourage these employers to assess themselves pay disparities along gendered, racial, and ethnic lines in their workforce and promote voluntary compliance with equal pay and anti-discrimination laws. In addition, SB 973 authorized DFEH to enforce the Equal Pay Act (Labor Code section 1197.5), which prohibits unjustified pay disparities. The Fair Employment and Housing Act (Gov. Code § 12940 et seq.), already enforced by DFEH, prohibits pay discrimination. Employers’ pay data reports will allow DFEH to more efficiently identify wage patterns and allow for effective enforcement of equal pay or anti-discrimination laws, when appropriate. DFEH’s strategic vision is a California free of discrimination.

Will DFEH’s pay data reporting system be similar to the one used by the EEOC to collect EEO-1 Component 2 data?

(11/02/2020) To ease reporting by employers, DFEH is endeavoring to create a system that closely resembles the EEOC’s system to the extent permitted by state statute.

 What is the deadline for employers to submit their pay data report(s) to DFEH?

(11/02/2020) Under Government Code section 12999(a), employers must submit their pay data reports to DFEH on or before March 31, 2021, and then on or before March 31 each year thereafter.

 What are the penalties for employers who fail to file?

(11/02/2020) “If [DFEH] does not receive the required report from an employer, the department may seek an order requiring the employer to comply with these requirements and shall be entitled to recover the costs associated with seeking the order for compliance.” Gov. Code § 12999(h).

Will an employer’s pay data be publicly available?

(11/02/2020) Government Code 12999(i) prohibits DFEH, the Division of Labor Standards Enforcement (DLSE), and their staff from making “public in any manner whatever any individually identifiable information obtained pursuant to their authority under this section prior to the institution of an investigation or enforcement proceeding by [DFEH and/or DLSE] under Section 1197.5 of the Labor Code or Section 12940 involving that information, and only to the extent necessary for purposes of the enforcement proceeding. For the purposes of this section, ‘individually identifiable information’ means data submitted pursuant to this section that is associated with a specific person or business.”

The DFEH advises that further guidance is coming soon in updated FAQs on the following topics:

  • What information/content is required in an employer’s report.
  • Further information on the definition of “pay.”
  • Further information on the definition of “hours worked.”
  • Information regarding multi-establishment employers.
  • Information on reporting obligations in connection with acquisitions and mergers.

The DFEH advises that it will be regularly updating the FAQs and it invites employers to write to the DFEH at paydatareporting@dfeh.ca.gov to pose additional questions. The DFEH’s FAQs can be found at https://www.dfeh.ca.gov/paydatareporting/.

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The Labor and Employment attorneys at Weintraub Tobin assist employers in all aspects of their employment law compliance, including compliance with California’s Equal Pay Act.  Please feel free to reach out to any of the attorneys if we can be of assistance to you in your employment law compliance.  Stay healthy and stay safe.