Court Case Prevention Measure: The 2015 Changes to Model Employment Handbook

Well-Written Workplace Policy Is the Best Policy

Hay Court House

Hay Court House

We strongly suggest that all employers have a well-written, up-to-date employment handbook. A current, thorough employee policy manual (handbook) and complementary written internal procedures and forms covering all major aspects of the workplace relationship permit managers and rank-and-file workers alike to know where they stand. See “Why Written Policy is Good Policy” and “Promoting Workplace Productivity with a Sound Policy Handbook and Forms.”

The court dockets are full of employment-related lawsuits that defendant companies could have prevented with clearly written and uniformly applied policy in compliance with current law. For well-meaning businesses that lack written standards and which have “just always done it that way,” it’s a little like the drivers who routinely cruise the freeways 10-15 mph above posted limits. Eventually, it will be “your time” to be tapped.

Take a company that for years has granted paid vacation time to its workers on a case-by-case basis with no written policy setting the standards and rules. In California, vacation is an “accrued benefit,” meaning that it builds over a worker’s duration of employment, with any unused portion to be paid upon termination. That well-intentioned business lacking written policy on how it counts and pays for vacation time might well end up on court defending expensive claims for underpayment of wages at termination, plus substantial penalties and attorney fees.

An outdated handbook can cause its own set of problems. For example, in the 2012 watershed Brinker Restaurant Corp. v. Superior Court case (see Brinker Decision and Rest Periods), the California Supreme Court allowed class action certification for over 80,000 employees in part because the employer corporation (running Chili’s, Macaroni Grill and a host of other restaurants) omitted a simple phrase from its policy manuals concerning required rest periods. Every California employer should now have its meal and rest periods policies up-to-date to ensure it is not making the same or similar mistakes as the Brinker corporation.

Our 2015 model employment handbook contains significant revisions to keep pace with new laws and recent case decisions. These include:

• Changes to anti-discrimination and harassment protections to include unpaid interns and volunteers (California) (see “California Labor Laws 2015: Interns and Trainees Now Protected from Harassment and Discrimination”)
• Expanding the definition of prohibited “bullying” in the workplace (California)
• Explaining employee rights and obligations when “moonlighting”
• Modifying reimbursement policy to include reimbursement for necessary work-related use of personal cell phones (California) (see “Ain’t No Such Thing as a ‘Free Call'”)
• Establishing and enhancing prohibitions against working “off-the-clock”
• New language on the timing of paid rest periods, emphasizing the complaint mechanism if prevented from taking meal or rest breaks
• Providing new mandatory paid sick leave benefits policy with specific rules governing accrual, carry over and use of sick leave to comport with California’s Healthy Workplaces, Healthy Families Act and (see “Mandatory Paid Sick Leave For California Employees”)
• Expanding the definition of employee “resignation”
• Revising smoking policy to address use of e-cigarettes or other “vaping” devices (see “To Vape or Not To Vape”)

We offer versions of our 2015 employee handbook for California and for other states as well as for companies of any size. For more information, please contact one of our attorneys, Timothy Bowles, Cindy Bamforth or Helena Kobrin.



The Annals of Copyright Number 6

Should You Register Your Copyrighted Work?

Portrait of Mezz Mezzrow in his office, New York, N.Y., ca. Nov. 1946

Portrait of Mezz Mezzrow in his office, New York, N.Y., ca. Nov. 1946

A work that you create is copyrighted from the moment it is born. It need not be registered with the U.S. Copyright Office to be protected. See The Annals of Copyright Number 2 – You May Have a Copyrighted Work and Don’t Know It. So is there any real advantage to be gained from registering a copyright with that federal agency? The answer is “sometimes yes,” but not necessarily for every single thing you create.

Registration with the U.S. Copyright Office gives the copyright holder the right to file a lawsuit for infringement against an unauthorized user of that work. Title 17 United States Code section 411(a). It also enables the copyright holder to claim and possibly win actual or statutory damages (set amounts not requiring proof of actual loss) and attorney’s fees if the court confirms the infringement, section 412. A lot can be at stake. Statutory damages range from $200 for an innocent infringement to $150,000 for a willful one, for each violation.

Registration places the rest of the world on notice of the copyright and can thus deter a potential infringer.

Registration within the first five years after publication can add greater weight to the evidence that the work is original and protected.

Also, many registrations are easy and low cost, achievable online for as little as $35.00.

However, there are factors that might not favor registration. The number of copyrighted works one creates is a consideration. Whether the original work is central or incidental to one’s enterprise is another. For example, a performer who writes her or his own music might well be smart to register such creations. However, a band’s creation of throw-away promo for various live performances may not be worth the trouble because a lawsuit to protect those flyers might not ever be seriously considered.

Generally, the more valuable the copyright, i.e., the larger the audience for your work and the more you stand to profit from it, the more sense there is in prompt registration.

If you do choose to register any copyrights, it normally takes some time to receive confirmation. The Copyright Office currently advises that confirmation of online registration is taking up to eight months and up to 13 months for hard copy registrations. If you have any questions about copyright, including registration, fair use or other issues, contact our Of Counsel attorney, Helena Kobrin.

California Hospital Violence To Get Regulatory Injection

Health Care Worker Fatality Rate
Has Been Twice for All Other Industries Combined

One of the hospital wards at the Aleppo refugee barracks in Aleppo, Syria. 3,700 refugees in the barracks the day this picture was taken.

One of the hospital wards at the Aleppo refugee barracks in Aleppo, Syria. 3,700 refugees in the barracks the day this picture was taken in 1919-1920.

New Labor Code section 6401.8 requires state government, no later than July 1, 2016, to adopt required standards for acute general care and acute psychiatric hospitals plans to prevent workplace violence.

The new statute is from Senate Bill (SB) 1299, approved by Governor Brown September 29, 2014. According to Senator Alex Padilla, the bill’s sponsor, “violence in health care settings is a continuing national problem, and the risk of workplace violence is a serious occupational hazard for health care workers … In 2007, nearly 60% of all nonfatal assaults and violent acts occurred in the health care and social assistance industry… The fatal injury rate between 2003 and 2007 was twice the average rate for workers in all industries combined.”

The two April 20, 2014 stabbings of nurses in separate UCLA hospitals, Olive View and Harbor, likely gave further impetus to the bill.

Section 6401.8 directs Occupational Safety and Health Standards Board published rules on each affected hospital’s adoption of a workplace violence prevention plan “to protect health care workers and other facility personnel from aggressive and violent behavior.” Those standards are to include among other things:

● Plan Must Cover All Staff: A requirement that the prevention plan “be in effect at all times in all patient care units, including inpatient and outpatient settings and clinics on the hospital’s license”;

● Workplace Violence Definition: A minimum definition of “workplace violence” that includes the “use of physical force against a hospital employee by a patient or a person accompanying a patient that results in, or has a high likelihood of resulting in, injury, psychological trauma, or stress, regardless of whether the employee sustains an injury” and any incident involving the use of a firearm or other dangerous weapon (emphasis supplied).

● Training: Required violence prevention, procedure and reporting training for all staff, including provision of “critical incident stress debriefing or employee assistance programs”;

● Response: Incident response and investigation protocols;

● Documentation: Required hospital documentation of all violent incidents, to be retained for five years; and

● Reporting: Required hospital reporting to the state of all violent incidents. The report will be required within 24 hours if the incident resulted in injury, involved a firearm or other dangerous weapon or “presents an urgent or emergent threat to the welfare, health, or safety of hospital personnel.”

Web Posting Requirement: Section 6401.8 also requires Division of Occupational Safety and Health (DOSH or Cal OSHA), beginning January 1, 2017, to annually post a report on its Internet Web site containing information regarding violent incidents at hospitals. The Cal OSHA report is to include: ● the total number of reports from covered hospitals; ● which specific hospitals filed them; ● the outcome of any related inspection or investigation; ● the citations levied against a hospital based on a violent incident; and ● recommendations of the division on the prevention of violent incidents at hospitals.

The New Law’s Shortcomings: While the new law commendably emphasizes the importance of building adequate security for workers and will make public the statewide extent of incidents in covered facilities for the first time, it presumes the rate and severity violent attacks will continue. There is no direction to determine the actual sources of such violence in order to address reduction or elimination of these perils altogether.

Section 6401.8 also lacks any initiative to address the prospect of violence from co-workers or from intruders in covered facilities. It also specifically exempts required regulation of state-run hospitals altogether, including psychiatric and prison facilities, arguably the sites of the greatest levels of violent attacks against health care personnel.


California Labor Laws 2015: Unfair Immigration-Related Practices

California Extends Protections
For Whistleblowing Employees

Demonstration of Protest and Mourning for Triangle Shirtwaist Factory Fire of March 25, 1911

Demonstration of Protest and Mourning for Triangle Shirtwaist Factory Fire of March 25, 1911

As relayed a year ago in California’s Expanded Immigration-Related Protections, this state provides the most stringent retaliation protections for immigrant workers in the country. Effective January 1, 2015, California employer obligations in this area are increased again.

Labor Code section 1019 has prohibited any California business from engaging in “unfair immigration-related practices” in retaliation for a worker’s exercise of certain rights, including employee submission of a good faith complaint over his/her employer’s labor practices, seeking information on whether the employer is in compliance with workplace laws, and informing another person of his/her employment rights.

Under that original code section, such “unfair practices” included: (a) requesting more or different documents than required by the federal I-9 form; (b) refusing to honor any I-9 listed documents that reasonably appear to be genuine; (c) misusing the federal E-Verify system to check employment status in a manner not required by law; and (d) threatening to contact or contacting immigration authorities except if and as required by federal authorities. That original law also barred an employer from threatening to file or filing a false police report.

Assembly Bill (AB) 2751, effective January 1, 2015, expands Labor Code 1019 to bar an employer threat to file — or an actual employer filing of — a false report or complaint to any state or federal agency. Section 1019 also now enables an employee subject to unfair immigration-related practices to bring a civil suit against the alleged offending employer and to collect damages and attorney fees if successful.

Labor Code section 1024.6 had previously prohibited businesses from discriminating or retaliating against an employee for having updated or attempting to update “his or her personal information” unrelated to the person’s job skills or qualifications. However, that statute did not specify just what sort of “personal information” was protected. AB 2751 will now clearly transform 1024.6 into an unfair immigration practices statute, barring employers from terminating, discriminating against or retaliating against an employee for having updated or attempting to update “his or her personal information based on a lawful change of name, social security number, or federal employment authorization document.”

These laws do not absolve employers from ensuring all required I-9 procedures are in place to confirm and document each worker’s authority to work within the United States. However, in California at any rate, companies are barred from seeking to penalize or intimidate a worker for speaking out about workplace practices through employer actions or threats aimed at that worker’s immigration or citizenship status.

For more information concerning an employer’s obligations under California or federal employment laws, contact attorney Tim Bowles, Cindy Bamforth or Helena Kobrin.

California Labor Laws 2015: Employer Responsibility for Staffing Agency Labor Violations

Business Must Carefully Balance the Risks

Joseph Steinmetz doing an egg balancing trick - 1939

Joseph Steinmetz doing an egg balancing trick – 1939

Effective January 1, 2015, California Assembly Bill 1897 makes employers that hire workers from staffing agencies automatically liable for wages and workers’ compensation violations by the staffing agencies. Labor unions promoted this new law. The California Chamber of Commerce opposed it.

AB 1897 makes it easier for a worker who alleges underpayment of wages from a staffing agency to seek payment from the employer utilizing that worker’s services. Previously, that worker would have to file suit to prove the agency and business were true “co-employers” under potentially complicated rules on rights of control of the employee’s labor. Under AB 1897, no such proof will be needed. Indeed, if a staffing agency fails to pay proper wages, including overtime, to a worker, that person can go directly to the employer using the worker’s services to demand payment even without filing suit.

Under AB 1897, a California employer must also now pay for work comp coverage in the event that its staffing agency fails to do so.

The law does not apply to companies with fewer than 25 employees (including those hired from staffing agencies) nor to employers using five or fewer temporary workers from a staffing agency. It also does not apply to legitimately exempt-from-overtime workers, to government employers or to certain industries, including specific motor carriers, cable, telephone and satellite providers. Also excluded are certain organizations or programs covered by collective bargaining agreements, bona fide non-profit community programs servicing workers, and motion picture payroll services companies.

This new law of course requires business’s greater diligence in hiring a known and reputable staffing company that maintains the required workers compensation and that complies fully with all California compensation laws, including proper wage documentation and overtime calculations. Such due diligence could include:

● Request and review of the staffing agency’s documented financial solvency and ability to pay its workers;

● Requiring the agency’s standard provision to the business of the payroll records sufficient to confirm compliance with applicable laws on paystub information and compensation calculations;

● Request and review of the staffing agency’s applicable workers’ compensation policy;

● Written agreement the agency’s carrier will promptly deliver notice to the business of any impending or actual change in coverage; and

● Regular confirmation with the affected workers that the agency is paying them properly.

An employer’s higher accountability standards also increase the necessity to include sound indemnification provisions in staffing agency contracts, committing the agency to reimburse the business for any expense incurred (including attorney fees) by that agency’s failure to meet its payroll or work comp coverage obligations.

A worker must give an employer 30 days’ notice if it intends to file a civil lawsuit against the employer under this statute. Such civil suit may include “class actions,” in which one or more workers may carry the similar claims of multiple co-workers, or “representative actions,” which also seek to include multiple co-workers under special procedures and criteria. For more on class actions in California, see “Contractor Missclassification . . . Class Action?

If you have any questions about the new law, Tim Bowles, Cindy Bamforth and Helena Kobrin of our firm would all be pleased to answer your questions.