Existing state law establishes the California Retail Food Code (Health and Safety Code Part 7) to provide for the regulation of retail food facilities. Health and sanitation standards are established at the state level through the California Retail Food Code, while enforcement is charged to local agencies, carried out by the 58 county environmental health departments, and four city environmental health departments (Berkeley, Long Beach, Pasadena, and Vernon). [HSC §113700, et seq.]
A “food facility” is defined as an operation that stores, prepares, packages, serves, vends, or otherwise provides food for human consumption at the retail level. Excludes various entities from the definition of a “food facility,” including a cottage food operation, and a church, private club, or other nonprofit association that gives or sells food to its members and guests, and not to the general public, at an event that occurs no more than three days in any 90 day period. [HSC §113789]
Existing law defines a “food handler” as an individual who is involved in the preparation, storage, or service of food in a food facility. [HSC §113790]
The California Retail Food Code, provides for the regulation of health and sanitation standards for retail food facilities by the State Department of Public Health. Existing law, with specified exceptions, requires a food handler to obtain a food handler card within 30 days of their date of hire and to maintain a valid food handler card for the duration of their employment as a food handler.
A recent New York Times article published on January 17, 2023, entitled, “How Restaurant Workers Help Pay for Lobbying to Keep Their Wages Low.” According to the article, when new restaurant workers pay $15 to take the ServSafe online class in food safety, they are also helping to fund a nationwide lobbying campaign to keep their own wages from increasing.
The article claims that ServSafe doubles as a fund-raising arm of the National Restaurant Association (NRA), which has spent decades fighting increases to the minimum wage at the state and federal levels. ServSafe is the dominate food handling training company in the country controlling an estimated 70% of the market. They make money by charging workers for food handling trainings in all 50 states.
Generally speaking, if an employer requires employees to obtain training, the employer is required to pay for that training, which is both a federal requirement under the Fair Labor Standards Act, as well as a state requirement under Labor Code Section 2802.
However, if a certification is required by the state in order to be employed in a given employment category, there is generally no requirement that an employer pay for training leading to licensure or certification. According to an opinion issued by the Division of Labor Standards Enforcement (DLSE) of the Department of Industrial Relations concerning whether an employer must pay for t cost of a class that an employee had to take in order to retain their job selling life insurance,
DLSE stated that “While the license may be a requirement of the employment, it is not the type of cost encompassed by Labor Code §2802. The most important aspect of licensure is that it is required by the state or locality as a result of public policy. It is the employee who must be licensed and unless there is a specific statute which requires the employer to assume part of the cost, the cost of licensing must be borne by the employee.”
However, there are numerous examples of laws or regulations where the state requires the employer to provide training, and it is clear that the employer is required to pay for the cost of this training. One example is the requirement that employers with five or more employees provide sexual harassment training. Additionally, there is a long list of various training requirements under California’s Division of Occupational Health and Safety, specific to different types of industries.
As a result of this New York Times article, a California legislator introduced SB 476, which was approved by the legislature, and signed by Governor Newsom, which amends Section 113948 of the Health and Safety Code effective January 1, 2024. This new law requires employers to consider the time it takes for the employee to complete the training and examination as compensable “hours worked,” for which the employer is required to pay, and to also pay the employee for any necessary expenditures or losses associated with the employee obtaining a food handler card.
It also requires an employer to relieve an employee of all other work duties while the employee is taking the training course and examination. And it also prohibits employers from conditioning employment on an applicant or employee having an existing food handler card.