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Ships backed up outside US ports pumping out pollutants as they idle

Supply chain crisisShips backed up outside US ports pumping out pollutants as they idleThe Ports of Long Beach and Los Angeles, two of the nation’s busiest, create more than 100 tons a day of smog that choke local communities Gabrielle Canon in Los Angeles@GabrielleCanonFri 15 Oct 2021 07.05 EDTLast modified on Fri 15 Oct 2021 07.07 EDTDozens of behemoth cargo ships adorned with tall stacks of brightly colored containers still dot the coastline off southern California. Part of a shipping bottleneck plaguing US ports, the ships – their diesel-fueled engines always ablaze – are also pumping out pollutants as they idle, anchored off-shore.The clogged supply chain has been described as an economic calamity as the delayed cargo caused shortages in common goods and drove consumer prices higher. But environmentalists and public health advocates are concerned it’s also turning into a climate catastrophe.The container ships awaiting entry are compounding the levels of contaminants that have long come from the ports and that impact the local environment, coastal communities and ambitious carbon targets needed to curb the worst effects of climate change. With the holiday shopping frenzy just around the corner, there are now concerns the problem may get worse before it gets better.“The conversation right now is really focused on supply chain backlog and refilling the shelves with products – but that’s not the whole story,” said Madeline Rose, the climate campaign director for Pacific Environment, a climate advocacy organization that has …

‘We are not machines’: Hollywood workers poised to strike for better conditions

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US unions‘We are not machines’: Hollywood workers poised to strike for better conditionsUnion leaders say a strike will start Monday if there is no deal with studios as workers describe low pay and grueling days without breaks Michael SainatoFri 15 Oct 2021 05.00 EDTLast modified on Fri 15 Oct 2021 12.55 EDTAt the start of the pandemic, Hollywood productions abruptly shut down, leaving many workers out of work before things began to resume with Covid-19 safety protocols in place.Since then, workers in Hollywood say they have worked long schedules and endured increased workloads, including staggering work because of social distancing; wearing and distributing personal protective equipment through long work days; and regularly getting tested for Covid-19.“We were working at breakneck speeds, and that was something that was supposed to have changed. We were supposed to have the time we needed to work in that kind of environment,” said Mike Loomer, a set dresser in Hollywood and International Alliance of Theatrical Stage Employees (IATSE) Local 44 member.“The only thing that changed is what we had to endure to make the product that they had to have to get out for the public to see.”Studios will again go quiet around the US as IATSE leaders say its 60,000 members will go on strike from 12.01 PT on Monday if a deal is not reached with employers. It would be the first such national strike since the IATSE was formed 128 years ago.Members of …

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Cal/OSHA Modifies Quarantine Rules for Asymptomatic, Unvaccinated Workers

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Cal/OSHA Modifies Quarantine Rules for Asymptomatic, Unvaccinated Workers

Without any fanfare, the California Division of Occupational Safety and Health (Cal/OSHA) updated its FAQs for the COVID-19 emergency temporary standards (ETS) on Sept. 21, to incorporate new guidance from the California Department of Public Health (CDPH).Importantly, the CDPH has relaxed its quarantine recommendations for unvaccinated, asymptomatic workers.  The ETS, which governs most workplaces in California, requires a 10-day quarantine period in most circumstances. The recent guidance from the CDPH provides an even shorter quarantine option for asymptomatic, unvaccinated employees.  Specifically, asymptomatic, unvaccinated employees may now end their quarantine either 10 days after exposure or 7 days after exposure if they test negative. However, the diagnostic specimen has to be collected at least 5 days from the date of exposure to take advantage of this guidance.In its FAQs, Cal/OSHA acknowledged that it is required by Executive Order N-84-20 to defer to CDPH’s quarantine lengths if they are shorter than the exclusion requirements in the ETS. However, Cal/OSHA also noted, if an employer prevents an employee from complying with the shorter quarantine conditions recommended by the CDPH, then the longer quarantine requirements in the ETS will apply. Additional highlights from the new CDPH guidance are below.Isolation for Individuals who Test PositiveThe CDPH recommends a symptom-based strategy for determining the duration of isolation for people with COVID-19 who are symptomatic. Under this strategy, persons with COVID-19 who have symptoms and were instructed to care for themselves at home may discontinue self-isolation if all the following conditions are met:At least 10 days have passed since symptom onset.At least 24 hours have passed since the resolution of fever without the use of fever-reducing medications.Other symptoms have improved.For persons with COVID-19 who do not have any symptoms, the CDPH recommends they self-isolate at least 10 days from the date of the first positive COVID-19 diagnostic test. If they develop symptoms during this time, the standard for symptomatic individuals above will apply instead.Quarantine for Unvaccinated PersonsThe CDPH recommends that unvaccinated persons who have had close contact with someone suspected or confirmed to have COVID-19 get tested and self-quarantine. Close contacts that remain asymptomatic may discontinue self-quarantine under the following conditions:Quarantine can end after day 10 from the date of last exposure without testing.Quarantine can end after Day 7 if a diagnostic specimen is collected on day 5 or later from the date of exposure and the test is negative.In addition to the conditions above, during the 14 days after exposure, the close contact should continue monitoring their symptoms, wear a mask when around others, wash their hands, avoid groups, and stay at least six feet from others. If the person develops symptoms within 14 days of exposure, they should self-isolate immediately and get tested.Quarantine for Vaccinated PersonsUnder the CDPH guidance, the exposed person does not have to quarantine if they are fully vaccinated before the exposure and have not developed symptoms. Similarly, if an exposed person tested positive for COVID-19 before their recent exposure and (1) it has been less than 3 months since they started having symptoms from their prior infection and (2) they have not …

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Los Angeles County Issues Vaccine Verification Rules for Hospitality Businesses

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Los Angeles County Issues Vaccine Verification Rules for Hospitality Businesses

Not long after West Hollywood issued an emergency order requiring vaccine verification and a vaccine mandate for certain businesses, Los Angeles County followed suit with its own vaccine mandate for many hospitality workplaces and large events. The county just issued an updated health officer order—with most requirements taking effect Oct. 7—with new vaccine or proof of negative test requirements for outdoor mega events and a vaccine verification and vaccine mandate for bars, breweries, wineries, distilleries, nightclubs and lounges. It also strongly recommends that restaurants and food facilities reserve and prioritize indoor seating and services for those who are fully vaccinated against COVID-19. Here’s what you need to know about this new Los Angeles County order.Who is Affected by the Changes?The order impacts operators of:Outdoor mega events.Bars, wineries, distilleries, nightclubs and lounges for indoor services.Restaurants and food facilities.The requirements differ for each of these three sectors and the order only includes strong recommendations for restaurants and food facilities.Outdoor Mega Events”Mega events” are defined as events that have greater than 1,000 indoor or 10,000 outdoor attendees. This includes conventions, conferences, expos, concerts, shows, nightclubs, sporting events, live events and entertainment, fairs, festivals, parades, theme parks, amusement parks, water parks, large private events or gatherings, marathons or endurance races, and car shows.Extending the requirements that apply to indoor mega events, beginning Oct. 7, operators of outdoor mega events that are ticketed or held in a defined space with controlled points of entry, for all attendees ages 12 or older, are required to either:Verify the full vaccination status.Obtain a pre-entry negative COVID-19 viral test result.The vaccine verification or negative test will be required prior to entry to the event. In addition, attendees are required to wear face masks at all times, except when eating or drinking.Outdoor mega event operators are required to prominently place information on all communications, including reservation and ticketing systems, informing attendees of the Order’s requirements that all attendees either be fully vaccinated or obtain a negative COVID-19 test result prior to attending the event and the requirement of wearing a face mask while in attendance.The order contains specific instructions on what is acceptable proof of vaccination status and negative test results for outdoor mega events.Acceptable proof of full vaccination status is a photo identification of the attendee and one of the following:Vaccination card, including name of person vaccinated, type of COVID-19 vaccine provided and date of last dose administered.A photo of the vaccination card as a separate document.A photo of the attendee’s vaccine card stored on a phone or electronic device.Documentation of the person’s full vaccination from a healthcare provider.Beginning Nov. 1, operators of outdoor mega events are required to cross-check proof of full vaccination or negative COVID-19 viral test result against a photo identification for all attendees who are 18 years of age or older.Pre-entry negative testing is testing that must be conducted within 72 hours before event start time. Results of the test must be available prior to entry into the event or venue. Acceptable proof of a negative COVID-19 test is a photo identification …

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California justice department to investigate enormous oil spill

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CaliforniaCalifornia justice department to investigate enormous oil spillAttorney general will seek to determine cause of spill and how it could have been prevented Mark Oliver and agenciesMon 11 Oct 2021 19.22 EDTCalifornia’s justice department is investigating the spill off the coast of Huntington Beach earlier this month, which sent thousands of gallons of oil into the ocean, the state’s attorney general, Rob Bonta, announced on Monday.The spill, from an undersea pipeline, polluted the waters near Los Angeles last weekend, blackening beaches and endangering wildlife.Bonta said the state’s justice department would work with other state, local, and federal authorities to determine the cause of the spill and what, if anything, could have been done to prevent or minimize the disaster.Officials have previously said the cause remains under investigation, and they believe the pipeline was probably damaged by a ship’s anchor several months to a year before it ruptured.Why California’s enormous oil spill won’t be its lastRead more“The oil spill off the coast of Huntington Beach is an environmental disaster with far-reaching consequences for our fish and wildlife, for our communities, and for our economy,” said Bonta.Experts have warned the spill probably won’t be the state’s last, with numerous ageing oil rigs offshore.The US senator Alex Padilla of California said: “It is unacceptable that Californians are once again facing the devastating effects of an offshore oil spill. The trade-off between oil production and environmental harm is …

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New California Laws Extend AB 5 Exemptions for Certain Industries

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New California Laws Extend AB 5 Exemptions for Certain Industries

Gov. Gavin Newsom has signed AB 1561 to extend the sunset dates on the exemptions granted to licensed manicurists and construction trucking subcontractors from the provisions of AB 5. AB 5 sets forth the test for whether a worker is an independent contractor or employee.The exemptions will now sunset on Jan. 1, 2025, providing each industry three additional years to determine compliance with AB 5.AB 1561 also clarifies the scope of the exemption granted to a data aggregator and a research subject who willingly engages with a data aggregator to provide individualized feedback. The new legislation further clarifies that the exemption for the insurance industry extends to an individual providing claims adjusting or third-party administration work. Finally, as to the existing exemption for manufactured housing salespersons, AB 1561 specifies that the statutorily imposed duties of a manufactured housing dealer under the Health and Safety Code are not factors to be considered under the worker classification test.Exemption Extended for Newspaper Distributors and CarriersThe governor also has signed AB 1506, which extends the existing exemption for three more years for newspaper distributors and carriers from the “ABC Test” under Dynamex and AB 5. The bill takes into account the reality that newspaper carriers often work for more than one newspaper and requiring carriers to be classified as employees would limit carriers’ opportunities and drive up the cost of newspaper deliveries.  The bill also requires newspaper distributors to submit specified information to the Labor and Workforce Development Agency on the number of carriers for which the publisher or distributor paid and did not pay payroll taxes for, as well as the wage rates and information to demonstrate compliance of their carrier with the Borello test, which is a multi-factor test for determining worker classification.Arthur K. Cunningham is an attorney with Jackson Lewis in Orange County, Calif. Stephanie A. Kierig is an attorney with Jackson Lewis in San Diego. Talya Z. Friedman is an attorney with Jackson Lewis in Los Angeles. Janelle J. Sahouria is an attorney with Jackson Lewis in San Francisco. © 2021 Jackson Lewis. All rights reserved. Reposted with permission.  …

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San Diego COVID-19 Recall Ordinance Survives Legal Challenge

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San Diego COVID-19 Recall Ordinance Survives Legal Challenge

A federation of hotel and motel owners and operators challenged a San Diego ordinance that requires certain building service and hospitality employers to recall workers laid off due to the pandemic before hiring new employees. In San Diego County Lodging Association v. City of San Diego, No. 20-cv-2151 (Sept. 16, 2021), the U.S. District Court for the Southern District of California upheld the ordinance, which as a result remains effective and binding until it sunsets on March 8, 2022.The Recall OrdinanceIn response to the COVID-19 pandemic, on September 8, 2020, the City Council of San Diego adopted an ordinance to assist local service and hospitality employees who were particularly affected by layoffs due to the drastic reduction in travel during the pandemic. The “City of San Diego COVID-19 Building Service and Hotel Worker Recall Ordinance” requires larger commercial property, hotel, and event center employers to offer employees who have been laid off due to the pandemic, or seasonal employees not scheduled for work due to the pandemic, all available job positions for which they are qualified before employing new workers. A laid-off employee is “qualified” for a position if the employee previously “held the same or similar position” or “is or can be qualified for the position with the same training that would be provided to a new employee hired into that position.”The Challenge to the OrdinanceTwo months after the city adopted the ordinance, the San Diego County Lodging Association (SDCLA) challenged its legality in a lawsuit against the City of San Diego. The SDCLA filed an early motion for summary judgment to bring the issues straight to a head. It advanced two legal theories: (1) “the Ordinance violates the Contracts Clauses of the United States Constitution and California Constitution” because it “replac[es] the right of hotel owners to terminate an employee ‘at will’ with ‘the option of suspending an employment contract'” and (2) “the ordinance is pre-empted by section 2922 of the California Labor Code, which codifies at-will employment,” because the ordinance subjects employers to liability despite acting in accordance with that code section.The court did not find either argument persuasive. Judge William Q. Hayes ruled that the ordinance was not unconstitutional because it was enacted for and appropriately addressed a public purpose: to ensure impacted employees “enjoy a right to return to their previous jobs when business activity resumes in order to aid economic recovery.” Hayes further found that the California Labor Code did not preempt the ordinance because the ordinance is not at odds with section 2292 and “the state legislature has expressly stated its intent not to preempt local recall measures like the Ordinance.”Key TakeawaysThe court denied the SDCLA’s motion for summary judgment in full, meaning that commercial property, hotel, and event center employers remain subject to the recall requirements of the ordinance. Although the SDCLA’s lawsuit objecting to the ordinance can continue in court, the summary judgment ruling casts doubt that the SDCLA will ultimately prevail. Absent a successful legal challenge, the ordinance will remain effective at least …

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Employer’s Failure to Produce Records Justified ‘Slight Windfall’ for Worker

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Employer’s Failure to Produce Records Justified ‘Slight Windfall’ for Worker

​An employer produced no records showing the hours a former employee worked or the compensation he received. So a trial court correctly used the employee’s records in a lawsuit for unpaid overtime, even though the evidence was imprecise and the overtime calculation resulted in “a slight windfall” for the employee, a California appeals court ruled.If an employer has failed to keep employment records, the consequences should fall on the employer—not the employee—the court said. The plaintiff accepted a full-time position with a tile and flooring store in 2016. His duties included cleaning the warehouse, accepting shipments, making deliveries to job sites, picking up tile from distributors and helping customers select tiles. His regular hours were Monday through Friday from 8 a.m. to 6 p.m. and Saturdays from 9 a.m. to 5 p.m. Beginning on March 9, 2018, the plaintiff no longer worked every Saturday. In 2018, after asking to be compensated for overtime hours, he was fired. On Feb. 14, 2019, the plaintiff brought a lawsuit, alleging unpaid overtime wages, meal and rest break compensation, statutory penalties for inaccurate wage statements, retaliation, and wrongful termination in violation of public policy. A trial began on March 4, 2020. The company manager testified that the plaintiff’s employment records were in his truck, which was stolen while parked in his gated complex. When the truck was recovered, according to the manager, nothing was in it. Without records, the manager of the business couldn’t provide accurate testimony regarding the plaintiff’s rate of pay and hours worked. The plaintiff testified he was hired to work for $120 per day, Mondays through Saturdays. He further testified he received 3 percent commission on sales, which was reduced to 1.5 percent at the end of 2017, and eventually cut to zero. At some point, his compensation increased to $150 per day. Beginning on March 9, 2018, he only worked two or three Saturdays per month. The plaintiff offered copies of the weekly checks he received during his employment, which were admitted into evidence. The employer did not produce a single document at trial. In the absence of any evidence to the contrary, the court accepted the plaintiff’s estimate that he worked 18 hours of overtime each week when he worked six days, and 14 hours of average overtime each week after March 9, 2018, when the plaintiff no longer worked every Saturday. The trial court calculated the plaintiff’s regular rate of pay by dividing his weekly paychecks by 40, the number of regular-time hours he worked per week. The trial court entered judgment in favor of the plaintiff for $99,394, which included $42,792 in unpaid overtime wages. The employer appealed, claiming that the trial court erred when calculating the plaintiff’s regular rate of pay and the overtime he was due.  The company alleged that the trial court should have isolated his weekly commissions and divided those dollars by the actual number of hours the plaintiff worked in a workweek (i.e., 50 or 58 hours) as opposed to 40 …

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CFRA Covered Employee’s Leave to Care for Adult Sister Prior to Expanded Law

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CFRA Covered Employee’s Leave to Care for Adult Sister Prior to Expanded Law

The California Highway Patrol (CHP) violated the California Family Rights Act (CFRA) when it fired a worker in 2014 after he took leave to care for his adult sister, a California appeals court ruled. The employee was entitled to take family leave because he stood “in loco parentis” to his sister, the court said. In 2014, the CFRA did not cover an employee’s leave of absence to care for a sibling. At that time, however, an employee was entitled to take leave to care for an adult dependent, including one to whom the employee stood in loco parentis. An employee stands in loco parentis if he or she acts in the place of a parent or is otherwise charged with a parent’s rights and responsibilities. Notably, there does not have to be a biological or legal relationship between the employee and the dependent. In this case, the employee’s immediate family included his mother and sister. He moved to the United States from Haiti in 1995. Eleven years later he began work as a CHP peace officer. Over the next eight years, performance reviews showed that he performed proficiently or higher in all categories.The employee cared for his 80-year-old mother who lived with him. His sister, who had paranoid schizophrenia, remained in Haiti. The employee created a private health care facility for her in the family home. He traveled there frequently to help with her care. He maintained regular contact with his sister’s treating physician, who considered him to be her caretaker.The employee paid the property taxes on the family home. He also paid for his sister’s food, daily necessities, medical care and health insurance. He employed and supervised an in-home caretaker for his sister. On Nov. 9, 2014, the employee learned that his sister had left the family home and was wandering the streets of Port-au-Prince, Haiti. He was also told that local law enforcement required him to file a report in person as his sister’s next of kin. Later that day, the employee told his supervisor that he might need an emergency leave of absence. He had previously taken emergency leave from his CHP duties to care for his sister, once in 2007 when she experienced a medical crisis, and again in 2010 after an earthquake. The following day, the employee told his supervisor that his sister was missing in Haiti and requested a two-week leave of absence. His supervisor notified the CHP captain that the employee needed to “go out of the country to attend family matters.” He left the next day, Nov. 11.When the employee did not show up for work on Nov. 14, CHP labeled him absent without leave. When the employee returned to work on Dec. 4, he submitted documentation about his leave, including:Medical records confirming his sister’s condition and ongoing medical treatment.Police reports showing that he was his sister’s next of kin and had initiated a police search to help find her.Financial records demonstrating the employee’s long-standing financial support for his sister.CHP refused to …

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Shell’s Control over Gas Station Operations Made It a Joint Employer

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Shell’s Control over Gas Station Operations Made It a Joint Employer

A gas station manager could sue Shell Oil for violations of the California Labor Code even though Shell operated its gas stations through contracts with separate companies that ran the day-to-day operations, a California appeals court ruled. Shell’s level of control made it a joint employer along with the company that ran the station, the court said.Shell owned more than 300 gas stations in California, but operations were conducted through a multisite operated (MSO) model. Under the MSO model, Shell entered into a set of nonnegotiable form agreements with each MSO operator, which, in turn, operated the station. The operators leased station convenience stores and car washes and paid monthly rent. The operators’ employees performed all work at the station. The MSO operators were required to use Shell’s electronic point-of-sale cash register system, with the proceeds paid directly to Shell, not to the operators. The operators were required to follow detailed terms that were set forth in Shell’s manuals and guides. They were also required to provide daily reports to Shell and submit to periodic inspections. The MSO contract provided detailed instructions for compliance with labor laws, but called for the operators to hire, fire, train, discipline and maintain payroll records for their own employees. The operators did not have discretion to modify the tasks set forth in the MSO contract and manuals, which were performed by their employees. The plaintiff was a cashier and later a station manager at a Shell station operated by R&M Enterprises. The plaintiff was always paid directly by R&M. He received no employment benefits directly from Shell, and R&M determined whether he was exempt or nonexempt and controlled his compensation and benefits. The plaintiff was terminated by R&M in December 2008. He subsequently sued R&M and Shell for failure to pay overtime wages and failure to pay premiums for missed breaks. The trial court ruled that the case was the same as two prior court of appeal cases against Shell, in which Shell was not found to be a joint employer of MSO employees. The case was dismissed before trial, and the plaintiff appealed. The appellate court reversed, ruling both that this case was factually different from the two prior cases and that the two other appellate courts incorrectly applied established law as to how joint employer status was to be determined. Legal Standards for Joint EmploymentUnder a 2010 California Supreme Court case (Martinez v. Combs, 49 Cal.4th 35), employer status for wage and hour purposes is controlled by the Industrial Welfare Commission’s wage orders. The applicable wage order defines employment as consisting of three alternatives: To exercise control over wages, hours or working conditions, directly or indirectly.To “suffer or permit to work.”To engage.The “suffer or permit to work” definition of employment, the court noted, is very broad, reaching all individual workers who can reasonably be viewed as working for the employer’s business.The court concluded that Shell both indirectly controlled the station manager’s wages and working conditions, and allowed the manager to work at a …

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