California Update – State-Wide Face Covering Requirements; the Impact of the recent SCOTUS Anti-Discrimination Decision; and Local Minimum Wage Rate Increases

Date   Jun 22, 2020

A quick employment law update for California employers to start your week!

Gov. Newsome Issues Face Covering Order: On June 18, 2020, California’s Governor issued new Guidance For The Use Of Face Coverings. All persons in California must now wear face coverings when they are in identified “high-risk” situations, including: (1) when inside, or in line to enter, any indoor public space; (2) when obtaining healthcare services; (3) when waiting for or using public transportation, including rideshare vehicles, or operating such vehicles when the public is present; (4) when outdoors in public places and unable to maintain physical distancing from persons not members of the same household or residence.

The Guidance further directly addresses face coverings in the workplace – Employees must wear face coverings when engaged in work, whether at the workplace or performing work off-site, when (a) interacting in-person with any member of the public; (b) working in any space visited by members of the public, regardless of whether anyone from the public is present at the time; (c) working in any space where food is prepared or packaged for sale or distribution to others; (d) working in or walking through common areas, such as hallways, stairways, elevators, and parking facilities; (e) in any room or enclosed area where other people (except for members of the person’s own household or residence) are present when unable to physically distance. Please note that these requirements, while new at the state level, have already been in place in several cities and counties for several weeks, and those city/county Orders may still be more restrictive than the new state guidance. Employers must comply with the more restrictive guidance/Order that applies in their area.

There are exemptions to the face covering requirement for small children, persons with medical conditions or disabilities, persons obtaining services involving the nose or face where mask removal is necessary to perform the service, and persons who are maintaining proper physical distancing while eating/drinking or engaging in outdoor work/recreation. Employees in positions with regular public contact who are exempted due to medical conditions should, where their condition permits, wear a non-restrictive alternative, such as a face shield with a drape on the bottom edge.

So what does this mean in real world application for California employers? In short, employees must wear face coverings in the workplace at all times unless they are in a workspace that is not open to, or visited by, members of the public, and they are maintaining proper physical distancing (at least 6 feet). For example, if workstations in non-public areas are properly physically distanced, employees may remove their face coverings while at their workstations, but if they leave their workstation, or if someone else enters their workstation, and at all other times or areas in the workplace, they must wear a face covering, unless they are eating/drinking and properly physically distanced.

SCOTUS Expands List of Protected Categories Under Federal Law: As virtually every news source has reported, on June 15, 2020, the Supreme Court of the United States (SCOTUS) issued a landmark decision effectively adding “sexual orientation” and “gender identity” as protected categories under federal law found in Title VII of the Civil Rights Act of 1964 (consolidated cases of: Bostock v. Clayton County, Altitude Express Inc. v. Zarda, and R.G. Harris Funeral Homes Inc. v. EEOC.) Our colleagues prepared an Alert and Webinar to provide a further in-depth discussion of this case, but this ruling has caused many California employers to question what it means for them.

Impact of this Ruling in California: While this decision has an extremely significant impact on employers nationally, it has relatively little impact on California employers. California’s more stringent Fair Employment and Housing Act (“FEHA”) has explicitly prohibited discrimination on the basis of gender expression, gender identity, and sexual orientation for many years. Therefore, this new SCOTUS ruling is unlikely to have a significant impact on discrimination laws as applied to California employers since they should already have policies, practices, and trainings in place to provide employees with protections based on these categories.

Do California Employers Need to do Anything in Response to this Decision? The short answer is, probably not. However, the publicity arising out of this high-profile decision, particularly during Pride Month, has certainly created an increased awareness of LGBTQ+ rights in the workplace and may lead to a potential surge in claims, even in California. Therefore, all employers across the nation, and especially those in litigious California, are strongly encouraged to carefully review their anti-discrimination/harassment/retaliation policies and practices, complaint procedures, and employee trainings to ensure that they include all current protected categories (under both state and federal law) and foster a workplace where employees treat each other with dignity and respect.

Reminder on July 1, 2020 Minimum Wage Increases: Finally, amidst all the current pandemic and anti-discrimination issues, California employers should also be mindful of the increases to local hourly minimum wage rates that take effect on July 1, 2020:

  • Alameda - $15
  • Berkeley - $16.07
  • Emeryville - $16.84
  • Fremont - $15 for 26+ workers; $13.50 for 25 or fewer workers
  • Los Angeles (City and Unincorporated Areas of County) - $15 for 26+ workers; $14.25 for 25 or fewer workers
  • Malibu - $15 for 26+ workers; $14.25 for 25 or fewer workers
  • Milpitas - $15.40
  • Novato - $15 for 100+ workers; $14 for 26-99 workers; $13 for 1-25 workers
  • Pasadena - $15 for 26+ workers; $14.25 for 25 or fewer workers
  • San Leandro - $15
  • San Francisco - $16.07
  • Santa Monica - $15 for 26+ workers; $14.25 for 25 or fewer workers
  • Santa Rosa - $15 for 26+ workers; $14 for 25 or fewer workers

Local minimum wage increases often create confusion regarding other wage-hour issues that are tied to the state minimum wage. California employers should remember that wage requirements for salaried-exempt employees and commissioned sales employees are tied to the state (not local) minimum wage rates, so local minimum wage increases typically do not affect these exemptions. The same holds true for employees affected by California’s “tool rule” which generally requires employers to provide and maintain necessary tools and equipment for employees or ensure that they are paid at least two times the state (not local) minimum wage.

These developments will have a significant impact on employers in California. FordHarrison attorneys are available to assist you in implementing and ensuring compliance with these recent developments in the law. If you have any questions or need assistance, please contact the authors of this Alert: Cory J. King,, and Jamin Xu, Of course, you may also contact the FordHarrison attorney with whom you usually work.

FordHarrison is closely monitoring COVID-19 developments including associated federal and state legislation and reopening guidance. The firm has implemented continuity plans to allow our lawyers and staff to work remotely in a technologically secure environment when necessary, ensuring continuity of our operations and uninterrupted service to our clients. We are following all CDC guidelines and state and local laws as applicable. We are committed to ensuring the health and welfare of our clients, employees, and communities while continuing to provide our clients with the highest quality service. Please see our dedicated Coronavirus Taskforce and Coronavirus – CARES Act pages for the latest FH Legal Alerts and webinars on COVID-19, the new American workplace, workplace-related provisions of the CARES Act, as well as links to governmental and industry-specific resources for employers to obtain additional information and guidance. For more information or to be connected with a Coronavirus Taskforce or CARES Act attorney, please contact