Be Aware of Liabilities under Cal-WARN Act - California Chamber of ...
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VOLUME 46, NUMBER 14 ●
MAY 1, 2020
The Workplace Does State Consumer
Be Aware of Liabilities Privacy Act Prevent
Checking Employees’
under Cal-WARN Act Temperatures?
As the COVID-19
In Episode 67 California WARN, but usually not the pandemic contin-
of The Work- federal act. ues to affect
place podcast, These are two relatively unknown our economy,
CalChamber laws that can really get many employers business owners
Executive Vice in trouble, Shaw says. Each have specific are trying their
President and requirements, definitional issues and best to ensure that
General Coun- boxes to check. employees return-
sel Erika Frank, “The big picture… is if you’re talking ing to the workplace are safe to resume
and employ- about closing a facility or you’ve got 75 their duties, particularly when those
ment law expert Jennifer Shaw discuss people at a location and you’re… laying duties involve interactions with other
key points, misconceptions and liabilities off 50 of them or even 25 of them… you people. For this reason, many businesses
employers need to be aware of concern- need some counsel,” Shaw says. are implementing safety procedures that
ing the federal Worker Adjustment and While there are exceptions, for exam- often include temperature checks for
Retraining Notification (WARN) Act and ple for a physical calamity or “act of employees resuming their work.
California’s equivalent, Cal-WARN. God,” these exceptions haven’t been liti- One issue that may not be top of mind
gated and it is unclear what would meet for an employer with regard to tempera-
Key Points for Employers the exceptions, Shaw adds. ture checks is the California Consumer
The WARN Act and the Cal-WARN Privacy Act (CCPA). How does a law that
Act are laws for when employers need to Misconceptions was supposed to be targeted at big tech
do a mass layoff or a closure of a loca- Three significant misconceptions companies who collected a consumer’s
tion, Shaw says. employers face about the WARN Act are data online apply to a pandemic where an
The federal WARN Act and the the following, Shaw says. employer takes an employee’s tempera-
California WARN Act are two separate • “Everyone already knows what is ture before they enter the workplace?
laws that provide for different things, going on with unemployment crisis due The answer lies in the CCPA’s exist-
Shaw adds. For example, a temporary to the COVID-19 pandemic.” ing employee exemption, which is set to
layoff or a furlough can activate the See Be Aware of Liabilities: Page 4 expire at the end of this year.
The Employee Exemption
There are three provisions in CCPA
dealing with exemptions for employee
information.
• CCPA Section 1798.145(h)(A) basi-
cally states that CCPA does not apply
to personal information collected by a
Catch Up on COVID-19 Employer Issues See Does State Consumer Privacy Act: Page 8
Frequently Asked Questions
Telework Best Practices
And More Inside
calchamber.com/theworkplace Food Producer’s Keys to
Restoring Economy: Page 5
W W W. C A L C H A M B E R A L E R T. C O M
CALIFORNIA CHAMBER OF COMMERCE MAY 1, 2020 ●
PAGE 2
Labor Law Corner
Limits to Conducting Background Checks on Job Applicants
There are both state and federal laws sition, release, or parole” (California
that restrict how a background check can Civil Code Section 1786.18(a)(7)).
be conducted, and what type of infor-
mation can be provided in a background Timing
check report. In your particular situation, although
The federal Fair Credit Reporting Act the conviction is from 1995, the investi-
(FCRA) and the California Investigative gative consumer reporting agency may be
Consumer Reporting Agencies Act legally entitled to provide you the infor-
David Leporiere
(ICRAA) both restrict what background mation if the applicant was released from
HR Adviser check companies (referred to in the stat- prison within the last seven years.
utes as “investigative consumer reporting You will need some additional informa-
My company uses a background check agencies”) and prospective employers tion from the background check company
company to conduct background checks can and must do with regards to informa- to be certain that it was legally authorized
on our applicants. Recently, I received a tion on individuals who are applying for to provide you with that information.
report that included a felony conviction jobs. The statutes don’t specifically prohibit
from 1995. I thought there was a limit on an employer from considering informa-
how far back we could look for criminal Disclosure Requirements tion that is beyond the limits of what an
convictions. Can I consider this convic- There are a number of disclosure investigative consumer reporting agency
tion in making my hiring decision? requirements and procedural steps incum- is allowed to provide; however, before
bent on both employers and the investiga- considering such information in making
tive consumer reporting agencies. your hiring decision, we would suggest
In addition, and most relevant to your consulting your own legal counsel.
question, the ICRAA limits the type of
information the investigative consumer Column based on questions asked by callers
reporting agency can provide to the on the Labor Law Helpline, a service to Cali-
prospective employer. fornia Chamber of Commerce preferred and
California Chamber Officers With regards to records of arrest, executive members. For expert explanations
Mark Jansen indictment or conviction of a crime, the of labor laws and Cal/OSHA regulations, not
Chair investigative consumer reporting agency legal counsel for specific situations, call (800)
may provide information that is no more 348-2262 or submit your question at www.
Donna L. Lucas hrcalifornia.com.
First Vice Chair than seven years from the date of “dispo-
Kailesh Karavadra
Second Vice Chair
Gregory S. Bielli
Third Vice Chair
CalChamber-Sponsored Seminars/Trade Shows
Grace Evans Cherashore More at www.calchamber.com/events. and Security (BIS) and Export Basics.
Immediate Past Chair Labor Law International Trade Administration.
HR Boot Camp. CalChamber. June 12, May 5, Webinar. (800) 872-8723.
Allan Zaremberg
Walnut Creek; August 21, Pasadena; SBA COVID-19 Financing Programs.
President and Chief Executive Officer
September 10, Sacramento. (800) Small Business Administration, San
331-8877. Francisco District Office. May 5,
Alert (ISSN 0882-0929) is published weekly What Businesses Need to Know About Webinar. (415) 744-6820.
during legislative session with exceptions by
California Chamber of Commerce, 1215 K the California Consumer Privacy Act. Opportunities in Turkey Automotive
Street, Suite 1400, Sacramento, CA 95814- CalChamber. June 18, Webinar. (800) Sector. U.S. Commercial Service. May
3918. Subscription price is $50 paid through 331-8877. 6, Webinar. (800) 872-8723.
membership dues.
Leaves of Absence: Making Sense of It Energy Opportunities in Colombia. U.S.
Send email address changes to alert@ All. CalChamber. June 26, San Diego; Commercial Service. May 6, Webinar.
calchamber.com. Publisher: Allan Zaremberg.
Executive Editor: Ann Amioka. Associate Editor: August 13, Oakland. (800) 331-8877. (800) 872-8723.
Taryn DeOilers. Art Director: Neil Ishikawa. California Leaves for Expecting Employ- The Current State of Operations in
Capitol Correspondent: Sara Proffit. ees. CalChamber. September 17, Australia and New Zealand. U.S.
Permission granted to reprint articles if Webinar. (800) 331-8877. Commercial Service. May 6, Webinar.
credit is given to the California Chamber of International Trade (800) 872-8723.
Commerce Alert, citing original publication
date of article, and reprint is emailed to Alert POSTPONED: 94th Annual World Trade LatAm: Alternative Solar Project Financ-
at address above. Week. Los Angeles Area Chamber of ing Solutions. Export-Import Bank of
Email: alert@calchamber.com. Commerce. May 5, Los Angeles. (213) the United States. May 7, Webinar.
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Introduction to the Bureau of Industry See CalChamber-Sponsored: Page 6
W W W. C A L C H A M B E R A L E R T. C O M
CALIFORNIA CHAMBER OF COMMERCE MAY 1, 2020 ●
PAGE 3
The Workplace
Gauging the Job Performance of Remote Workers
In Episode 66 business typically sees will slow down, The bottom line: if employers were
of The Work- Shaw says. Therefore, employers should not already actively monitoring remote
place podcast, expect and be understanding of the fact workers before the COVID-19 crisis, they
CalChamber that some of their employees will have probably should not start doing so now.
Executive Vice less work to do. “It’s probably not the best use of your
President and time or money,” Frank says.
General Coun- Monitoring Software Shaw agrees.
sel Erika Frank Monitoring software that tracks what “…[Monitoring software] is not some
and employ- employees do on company computers is panacea that is going to spit out whether or
ment law expert Jennifer Shaw discuss available, Shaw says, but it doesn’t work not you have a good employee,” she says.
what employers should consider when very effectively. She explains that moni-
monitoring employees working remotely toring software does not work well if an Tips for Evaluating Performance
and provide key takeaways for evaluating employee has to connect to a company’s For employers wanting to evaluate
the performance of remote workers. network from a remote desktop. performance, Shaw and Frank suggested
While telework is not a new concept, Moreover, while the software may tell they:
Frank says, it is new to many employers. an employer, for example, that “Joe” was • Check in weekly, either personally
And even for employers who previously on social media for an hour, Joe could have or through conference software such as
allowed telecommuting, it’s new to have visited Facebook for 5 minutes at a time, Zoom, to engage employees and share
so many employees working remotely. which added up to an hour, Frank says. new developments. Shaw points out that
Many employers may now be asking And this is where employers should if an employee does not have much work
themselves: how can we evaluate job decide how they want to spend their time, to be done, he may not want to bring that
performance? Shaw points out. For example, can an up in a conference call. Therefore, check-
employee use the computer while taking ing in one-on-one periodically may be a
Considerations meal or rest breaks? And if so, does good idea as well.
Shaw remarks that while there are the employer want to take the time to • Set expectations. Given the infor-
many temptations in the home setting, match up each minute to confirm that the mal setting of telework, it’s very import-
some people are able to multitask and employee was indeed on a break? ant to set expectations, Shaw says. For
thrive in that environment. “It’s not as automated as you think. example, you may tell an employee that
When it comes to monitoring how It’s not like you’re just going to get this they are expected to respond to emails
employees use their time during work easy report that says, ‘You have a prob- within a specific amount of time. To
hours, employers should consider the lem employee,’” Shaw says. determine expectations for a particular
functions of nonexempt and exempt A common misconception is that if job, Shaw recommends that employers
workers. Whereas exempt workers are an employee is not in the office, they’re should treat it as though they are writing
paid for the projects or work done as a not working. But what “Joe” is doing at a job description by outlining what the
whole, nonexempt workers fulfill quan- home is what he has been doing at work, employee is supposed to be doing and
tifiable work tasks, such as inputting a Frank adds. how that will be measured.
specified amount of data or answering Shaw agrees, mentioning that research
phone calls for a specific amount of time, shows that the habits employees demon- Subscribe to The Workplace
Shaw explains. strate at the office are the same habits Subscribe to The Workplace on
Employers also should keep in mind they have at home. iTunes, Google Play, Stitcher, PodBean
that just as their company is working “So, if you’re upset about Joe’s… and Tune In.
from home, many clients also are at internet usage at home, you better start To listen or subscribe, visit www.
home, which means that the demand a tracking him in the office,” she says. calchamber.com/theworkplace.
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CALIFORNIA CHAMBER OF COMMERCE MAY 1, 2020 ●
PAGE 4
New California COVID-19 Supplemental Paid Sick Leave Notice
The California leave for employers with 500 or more passed COVID-19-related emergency
Labor Commis- employees who are covered by Industrial paid sick leave (including Los Angeles
sioner has Welfare Commission Wage Orders 3, 8, City and San Jose).
released the 13 and 14, and Health and Safety Code Employers who fall under the new
CA COVID-19 Section 113789. COVID-19 Supplemental Paid Sick
Supplemental Eligible employees may take up to Leave law are encouraged to visit the
Paid Sick Leave 80 hours of sick leave, paid at the high- California Labor Commissioner’s
for Food Sector Workers poster. est of: the regular rate of pay for the last website, which includes frequently asked
Employers who are covered under pay period, state minimum wage or local questions.
California’s new supplemental paid sick minimum wage. However, the rate of
leave requirement for food sector work- pay is capped at $511 per day and $5,110 CalChamber Resources
ers (Executive Order N-51-20) must total. California Chamber of Commerce
post this notice in a conspicuous place. This new leave is in addition to members can read more about Paid Sick
If the employer’s food sector workers California’s mandatory paid sick leave Leave in the HR Library. Not a member?
don’t frequent the workplace, then the law, the Healthy Workplaces, Healthy See what CalChamber can do for you.
employer may electronically distribute Families Act, which requires all employ- Visit the CalChamber Coronavirus
the notice. ers to provide three days or 24 hours of (COVID-19) webpage for more COVID-
mandatory paid sick leave. 19-related federal, state and local
New Paid Sick Leave Many California localities also have resources. See the HRWatchdog blog for
As previously reported, Governor sick leave mandates, many of which additional COVID-19-related posts.
Gavin Newsom’s executive order estab- exceed California’s minimum require- Staff Contact: Erika Frank
lishes a mandatory supplemental sick ments. Several localities have recently
Be Aware of Liabilities under Cal-WARN Act
From Page 1 making and documenting these decisions • Penalties and attorney fees.
• “Assuming you only have to tell and how do you prove you made a legiti- • Employers are subject to a class
your employees.” Employers also need to mate decision? action treatment or a Private Attorneys
give notice to their local public entities: General Act (PAGA) claim because the
the board, the employment development Liabilities for a Misstep Cal-WARN is in the Labor Code.
department and retraining organizations. Both the federal WARN Act and Now that we have more guidance on
• “Unemployed people are not going the Cal-WARN Act have very specific these laws, the leniency will not be there
to care about the WARN Act because requirements, many definitional issues, as much in the future, Frank cautions.
they’re already getting unemployment notices employers have to give to employ- It’s not going work if a month from
benefits.” Plaintiff lawyers care about the ees and special language, Shaw says. now you are arguing that you didn’t know
California WARN Act, Shaw stresses. If you are not issuing a notice you had to give notice, Shaw adds.
Employers shouldn’t assume they are not correctly then there are very significant
going to get a claim because someone is consequences, Shaw says. For example: Subscribe to The Workplace
on unemployment; that is not the same as • Employers pay 60 days of wages Subscribe to The Workplace on
being employed for an additional 60 days and benefits. This means if an employee iTunes, Google Play, Stitcher, PodBean
receiving benefits. is on COBRA health insurance and has and Tune In.
The bottom line is whether you’re a heart attack when you, the employer, To listen or subscribe, visit www.
hiring or firing, performance based or were supposed to be covering them, then calchamber.com/theworkplace.
not, employers need to think about their the heart attack is now covered by your
process, Shaw explains. How are you insurance.
Helping Business In A Global Economy
www.calchamber.com/internationalW W W. C A L C H A M B E R A L E R T. C O M
CALIFORNIA CHAMBER OF COMMERCE MAY 1, 2020 ●
PAGE 5
Food Producer Outlines Keys to Restoring Economy After COVID-19
Restoring confidence and supporting for the company’s employees and dairy Helping Economy
economic growth are two keys to moving producers for carrying out their special When it comes to restoring confi-
forward from the COVID-19 pandemic, responsibility to “produce food for the dence, Ahlem said, the more “we can
the CEO of a Central Valley cheese world during a time of great uncertainty.” aggressively support, incentivize and
producer told an Assembly budget Hilmar Cheese is part of an exten- adopt” new, safe ways that allow a return
subcommittee this week. sive supply chain involving dairy farm- to things like eating out, shopping, going
David Ahlem, CEO of Hilmar Cheese ers, processors, packaging converters, to school and the movies, “the quicker
Company, Inc., was among panelists retailers and food service operators. we get back on track. This
speaking via remote video activity drives demand, and
at the Assembly Budget demand gets people back to
Subcommittee No. 6 infor- work.”
mational hearing on COVID- Supporting and not
19 Recovery and Economic hindering economic growth
Stimulus on April 27. is imperative, Ahlem said.
Hilmar Cheese Company, “Our economy is
a California Chamber of like a fleet of ships,” he
Commerce member, was commented. “Some have
founded in 1984 by 12 sunk and are sitting at
farmer families and today the bottom of the sea,”
pools supplies from 200 while others are “partially
independent dairy farm fami- submerged.”
lies, Ahlem explained. The Now is not the time to
company has both domes- throw more weigh onto the
tic and global sales, manu- surviving ships, he said. “It
facturing sites in Hilmar, is time to reduce weight and
California, and in Dalhart, increase buoyancy for the
Texas, and employs nearly 1,000 people Altogether, the chain supports more than benefit of everyone.”
in California’s Central Valley. 400,000 direct and indirect jobs. The video of Ahlem’s remarks
Charles Ahlem, founding co-owner In recent months, he reported: dairy is available on the Assembly media
of Hilmar Cheese, is a member of the farmers have seen income fall well below on demand website at https://
CalChamber Board of Directors. the cost of production; retail customers’ www.assembly.ca.gov/media/
business is up overall, but “riddled with
Protecting Lives, Livelihoods volatility and the challenges of operating”
assembly-budget-subcommittee-6-
budget-process-oversight-program-
During the last few months, David in the current environment; food service evaluation-20200427/video. His remarks
Ahlem said, the company’s focus has demand “has fallen off a cliff”; and the begin at time stamp 54:02.
been “to protect lives and livelihoods.” value of the cheese Hilmar sells has
He praised and voiced appreciation dropped more than 40%.W W W. C A L C H A M B E R A L E R T. C O M
CALIFORNIA CHAMBER OF COMMERCE MAY 1, 2020 ●
PAGE 6
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CALIFORNIA CHAMBER OF COMMERCE MAY 1, 2020 ●
PAGE 7
Emergency San Francisco Ordinance Provides
Worker Health, Scheduling Protections
On April 21, establishment primarily engaged in the in-person and no-contact deliveries.
2020, the San retail sale of food; Employers must also require delivery
Francisco Board • A drug store, pharmacy or other drivers to regularly disinfect high-touch
of Supervisors establishment primarily engaged in the surfaces in their vehicles and compensate
passed an retail sale of medication, pharmaceuticals them for doing so.
emergency ordi- or medical supplies; or
nance requiring • An on-demand delivery service. An Right to Schedule Changes
grocery store, drug store, restaurant and on-demand delivery service is defined as In addition to the above requirements,
on-demand delivery service employers to “a third-party online or mobile applica- the ordinance also provides scheduling
provide health and scheduling protections tion or other internet service that offers or protections for qualifying employees
to their employees. arranges for the consumer purchase and working for a covered employer (as
Many people, especially those who same-day or scheduled delivery of food defined above). Where reasonably feasi-
are particularly vulnerable to COVID-19 products, medications or other goods ble, a worker’s request to cancel sched-
due to age or underlying health condi- directly to no fewer than 20 restaurants, uled work for any reason for which they
tions, use on-demand delivery services grocery stores, drug stores and other would otherwise be entitled to use San
to receive food and other essential items Essential Businesses.” Francisco’s Paid Sick Leave Ordinance,
while staying safe at home. An “employee” includes any person or emergency paid sick leave under the
To help prevent the spread of COVID- who performs at least two hours of work Families First Coronavirus Response Act
19 through these essential on-demand within the geographical boundaries of (FFCRA), must be approved. Qualifying
delivery services, the emergency ordi- San Francisco for a covered employer workers must be allowed to use any
nance clarifies and supplements the city’s — including those individuals that the available accrued paid sick leave or emer-
existing shelter-in-place order’s (Health company may treat as independent gency paid sick leave, or to reschedule
Order No. C19-07b) requirements for contractors for other purposes. the work.
on-demand delivery services, including The ordinance contains an anti-retal-
defining on-demand delivery drivers and Other Requirements iation provision and authorizes the city’s
shoppers as “employees,” even if they Under the ordinance, businesses Office of Labor Standards Enforcement
may be classified and treated as “inde- providing on-demand delivery drivers and (OLSE) to issue regulations and guide-
pendent contractors” for other purposes. shoppers must provide the following (as lines, and to investigate and enforce
San Francisco does plan to issue an all essential businesses are required to do violations.
updated shelter-in-place order later this under the existing shelter-in-place order): This emergency ordinance awaits
week, but the new order shouldn’t affect • Hand Sanitizer, soap and water, or Mayor London Breed’s signature and will
this emergency ordinance. On April 27, effective disinfectant in the workplace, become effective immediately upon sign-
2020, the Public Health Officers for San disinfecting cleaning supplies, and any ing. It will expire 61 days after enactment
Francisco, six other Bay Area counties needed personal protective equipment or when the public health emergency
and the City of Berkeley announced that such as gloves and face masks (or reim- ends, whichever occurs first.
they’ll issue revised shelter-in-place burse employees for the reasonable cost
orders, extending them through May and of purchasing such supplies); More Information
easing specific restrictions for a small • A Social Distancing Protocol in a Visit the CalChamber Coronavirus
number of low-risk activities. manner calculated to reach all employees (COVID-19) webpage for more COVID-
via electronic communication and/or by 19-related federal, state and local resources,
Covered Employers posting conspicuously on the employer’s including links to California Counties
Under the emergency ordinance, web- or app-based platform; and Health and Stay-at-Home Order pages.
a “covered employer” employs an • The option of a “no-contact” deliv- See the HRWatchdog blog for addi-
employee for any of the following: ery method for workers who make tional COVID-19-related posts.
• A grocery store, supermarket, conve- deliveries, where feasible, with detailed Staff Contact: Bianca Saad
nience store, restaurant, café or other guidance on how to safely make both
FOLLOW CALCHAMBER ON
twitter.com/calchamberW W W. C A L C H A M B E R A L E R T. C O M
CALIFORNIA CHAMBER OF COMMERCE MAY 1, 2020 ●
PAGE 8
Does State Consumer Privacy Act Prevent Checking Employees’ Temperatures?
From Page 1 member, or contractor of that business to source of the information, and 2) whether
business about an employee, job appli- the extent that the personal information the information is collected and used in a
cant, owner, director, officer, medical is collected and used solely within the way that is outside of the context of the
staff member, or contractor to the extent context of administering those benefits. employment relationship.
that the information is collected and used As noted above, the employee exemp-
by the business solely within the context The Reasons Matter tion to the CCPA referenced above will
of the person’s role or former role as a Thus, whether CCPA applies to “sunset” on January 1, 2021 unless the
job applicant, employee, owner, direc- a temperature read for an employee Legislature extends the deadline.
tor, officer, medical staff member, or a depends on the reason for collecting the Given it is unlikely this virus is going
contractor of that business. data. away and that business as normal will
• CCPA Section 1798.145(h)(B) If the temperature read is done for have to change, employee temperature
generally states that CCPA does not apply purposes of maintaining a safe workplace checks may continue to be a desired
to personal information that is collected and used solely for that purpose, then the protocol for businesses to adopt for the
by an employer that is emergency contact CCPA likely does not apply. long term.
information of an individual, to the extent If the temperature is not being used In order to ensure employees are
that the personal information is collected solely for purposes of employment, such protected as well as the general public,
and used solely within the context of as sharing the information with a face the Legislature will need to act before
having an emergency contact on file. mask company who can then target the the employee exemption “sunsets” in the
• CCPA Section 1798.145(h)(C) employee with ads for purchasing face CCPA to make sure it is a practice that
generally states that CCPA does not apply masks, then the CCPA will likely apply. employers can legally maintain.
to personal information that is necessary Because no case law or clarifications This article originally appeared as a
for the employer to retain to administer exist, the rule requires a business to Capitol Insider blog post.
benefits a job applicant, an employee, analyze the specific exemptions set out Staff Contact: Shoeb Mohammed
owner, director, officer, medical staff in the rule to determine two things: 1) the
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