Company A has a low-performing employee, Worker 1, who is also rude and threatening and resists correction. Should Company A: (1) allow Worker 1 to continue to cause chaos to avoid a lawsuit if it terminates Worker 1; (2) try to get Worker 1 under control; or (3) terminate Worker 1 with an offer of severance in exchange for a release?

Option 1 is disruptive to company morale and performance and unacceptable. If Company A has tried Option 2 with well-documented efforts at correction to no avail, then Option 3 can be a good method of regaining peace and productivity while eliminating potential suits for discrimination, retaliation, wrongful termination, disputed wage claims and the like. Company A would offer a severance amount -- above all earned wages and accrued vacation pay -- commensurate with time of service and contributions. To receive that additional benefit, Worker 1 will agree in a binding contract never to file or pursue such claims, real or imagined, known or unknown, against Company A.

If an employer approaches this task with care, including a well-planned exit interview, most departing workers will agree to the package, ending uncertainty for both parties.

To ensure the waiver applies to age discrimination claims, if Company A has 20 or more employees and Worker 1 was 40 or over, Company A must allow the worker (1) up to 21 days to consider and sign the waiver and the opportunity to have it reviewed by an attorney; and (2) seven more days after accepting to change his/her mind and rescind the agreement. Although that employer must wait the 21 days to withdraw the offer, the worker can agree and sign on the spot or at any time before the three weeks is up.

Some employers pay the severance amount as soon as the ink dries. Others wait for the seven-day recission period to expire. While rescission is rare, paying on signing carries some risk, since it may be impossible to recover that severance money from the rescinding former employee.

If a business has fewer than 20 on payroll and/or the departing worker is under age 40, the 21-day waiting and seven-day rescission periods are not required. However, California law does require a five-day waiting period for such workers.

The Bowles Law employment forms package includes an overview memo on severance offers, short and long form sample severance agreements, and a sample termination letter. We can help with forms for specific terminations. Ensuring proper written workplace policies, procedures and template forms are implemented can go a long way to preventing dubious suits from former employees intent on retribution.

Take-Aways:

While it may be unpopular with managers to offer a troublesome employee severance upon termination, paying that extra amount under a well-worded agreement is an employer’s “insurance policy” against a possible suit nearly guaranteed to cost more in company time, disruption, and attorney fees.

For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
See also:

• Retaliation Wake-Up Call: Employer Discipline, Termination May Be Presumed Illegal (December 1, 2023)
• Resignations and Terminations Policy (July 13, 2023)
• Bidding Farewell Not Unfondly: Using Severance Agreements in Touchy Terminations (September 24, 2021)

Helena Kobrin
May 30, 2025

While airlines are relatively cool on qualified emotional support animals, employers need only bend to the trend if federal or state disability discrimination laws are in play.

Employers of course have the prerogative of barring employee pets from the workplace. However, circumstances may require management to explore reasonable accommodation where the request is framed as a worker’s need for a “service animal” or “emotional support animal” under the federal Americans with Disabilities Act (ADA) or California’s Fair Employment and Housing Act (FEHA). No accommodation is required if it amounts to “undue hardship” or legitimate countervailing business concerns such as safety, health, and operational disruption.

The federal Equal Employment Opportunity Commission (EEOC) defines service animals “as dogs that are individually trained to do work or perform tasks for people with disabilities. Examples of such work or tasks include guiding people who are blind, alerting people who are deaf, pulling a wheelchair, alerting and protecting a person who is having a seizure … Service animals are working animals, not pets.” Emphasis supplied.

The U.S. Service Animals organization tells us “[a]n emotional support animal (ESA) is a companion animal that many individuals may need to help relieve symptoms of certain mental health conditions. [They] are typically dogs or cats, but other animals such as miniature horses or even pigs may find a place as support animals.” Emphasis supplied.

The ADA defines “reasonable accommodation” broadly but does not explicitly require employers to allow service animals or emotional support animals in the workplace. However, if an employee with a disability requests this, management must engage in an interactive process to determine whether the accommodation is necessary and reasonable.

Combining service and emotional support under “assistive animals,” California's Civil Rights Department advises allowing an animal in the workplace may constitute a reasonable accommodation under FEHA, provided the request is supported by documentation showing that the animal alleviates one or more symptoms of the employee’s disability.

Take-Aways:

Employers must assess animal-at-work requests on a case-by-case basis, weighing employee needs against workplace impact. Best practices include

Interactive Process: Engage in good faith discussions to evaluate the request and explore alternatives;

Documentation: Unless grounds are obvious, ask for medical documentation supporting the need for the animal;

• Trial Periods: Temporary or trial accommodations may help assess whether the presence of an animal causes hardship; and
• Workplace Policies: Develop written policies regarding workplace animals to ensure consistency and compliance.

For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

See also:

• Listen to the Blind Using Screen Reader Technology to Accommodate Sightless Employees (May 23, 2025)

• Superstore to Pay $75,000 for Disability Discrimination and Retaliation (August 30, 2024)

• Accommodation Nation Listen - Don’t Turn a Deaf Ear to Employee Disabilities (August 23, 2019)

• May I Bring My Monkey to Work? How to Handle Assistive Animals in the Workplace (May 15, 2018)

Tim Bowles
May 30, 2025

Settling a lawsuit by the Equal Employment Opportunity Commission (EEOC), The Results Companies, LLC in Fort Lauderdale, has agreed to pay $250,000 for refusing to accommodate a blind new hire who asked for a screen reader to enable her work as a telephone customer service agent. She had requested the company consult with her screen reader software publisher and her vocational counselor. The company fired her instead.

Federal (and state) law requires employers to engage in an interactive process with disabled employees requesting reasonable accommodations so they can work. Employers are excused only if such an accommodation would be an undue hardship.

The EEOC charged Results with not attempting to reasonably accommodate the worker so she could perform the job, in violation of the Americans with Disabilities Act (ADA). In addition to the $250,000 payment, the settlement requires Results to implement protocols to address disability accommodation requests and train employees on ADA requirements.

An EEOC trial attorney, Alexa Lang, said, “Accommodating employees who are blind with screen reader software such as JAWS (Job Access With Speech) is not automatically an undue hardship. Employers must meaningfully assess their technical capabilities and available resources.”

Take-Aways:

An employer fielding a disabled worker’s accommodation request must document its interactive process to determine whether a reasonable accommodation is feasible short of undue company hardship. By the lesson The Results Companies learned, providing screen reader software to a blind or visually impaired person may be such accommodation.

For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

See also:

• Religious Discrimination is No Vacation; EEOC is Suing Marriott Failure to Accommodate Saturday Sabbath (May 16, 2025)
• Pregnant Worker Discrimination; Company Pays Big for Brushing Off Accommodations (February 6, 2025)
• Superstore to Pay $75,000 for Disability Discrimination and Retaliation (August 30, 2024)

Helena Kobrin
May 23, 2025

The federal Equal Employment Opportunity Commission has sued two Marriott entities in Orlando, alleging discrimination for requiring a Seventh-Day Adventist sales executive to work Saturdays, her Sabbath. The agency charges Marriott initially honored the employee’s accommodation request but revoked it over her objection after a management change. The suit claims the employer also altered her work schedule in ways that negatively impacted sales and commissions, compelling her to resign.

While Marriott will likely assert continuing accommodation imposed an “undue hardship” on its operations, establishing that defense has become an uphill battle. For decades, courts found “more than de minimis” (trivial) cost amounted to ample hardship under federal Title VII. The Supreme Court’s 2023 Groff v. DeJoy decision now requires an employer to show accommodation imposes a substantial burden “in the overall context of an employer’s business,” i.e., notably increased costs or operational difficulties, not just minimal inconvenience. See, Religious Rulings Favors Employees; Supreme Court Requires Accommodation Unless Substantial Cost Burden (September 1, 2023).

California employers face an even higher standard. Under the Fair Employment and Housing Act (FEHA), “undue hardship” means a significant difficulty or expense, considering seven factors, including business size, composition of the workforce, company budget, reasonable notice to the employer and any available reasonable alternative means of accommodation.

Take-Aways:

Best practices include: :

• regularly re-examine religious accommodations to ensure consistency, especially after leadership changes
• train managers on the burdens necessary to meet the undue hardship test
• document every step of the accommodation process; and
• in California recognize the FEHA bar on accommodation is high, and compliance is not optional

For more information on our help with such audits, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

See also:

• Religious Objection to Mandatory Fingerprinting -Employer Must Properly Address Faith-Based Protest (March 9, 2018)
  
• Accommodating Religious Practices (June, 2015)
  
• Employer Duties to Fight Religious Prejudice (May 2014)
  
• Religious Institutions and Employment Discrimination - U.S. Supreme Court Rules Ministers May Not Sue (February 16, 2012)

Tim Bowles
May 16, 2025

California’s Fair Employment and Housing Act (FEHA) protects employees against discrimination, harassment and retaliation.

The state’s Civil Rights Council (CRC) aims to expand those protections to automated decision-making systems (ADS) using artificial intelligence and algorithms in recruitment, hiring and promotion. Inadequately overseen by company management, such streamlined processes can perpetuate biases and lead to discrimination, particularly against individuals with disabilities who need accommodations.

On March 21, 2025, the CRC approved proposed final regulations to:

• Define “agent” to include anyone acting on the employer’s behalf to recruit, hire, promote, etc. via ADS;
• Prohibit the use of any ADS that discriminates against FEHA-protected characteristics (e.g., race, gender, disability; and
• Mandate employers retain employment records (e.g., applications, selection criteria, ADS data) for four years.

Take-Aways:

The California Office of Administrative Law (OAL) will review and potentially approve these regulations, likely effective July 1, 2025. Employers should maintain caution and implement human review processes to avoid inadvertent workplace discrimination through AI tools.

For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

See also:

• All Aboard – Wages Obligations to New Hires (April 11, 2025)
• Workplace Artificial Intelligence – EEOC Goes Old School (May 26, 2023)

Cindy Bamforth
May 15, 2025

The federal Equal Employment Opportunity Commission (EEOC) has entered a consent decree in an age discrimination lawsuit against movie theatre chain, Allen Theatres, Inc. (Allen). Charges included forced retirement of a 30-year theatre manager because he was 73 years old, stopping health coverage when employees reached 65 years and Medicare eligibility, and paying less to employees over 65.

All of these acts violated the Age Discrimination in Employment Act (ADEA), prohibiting discrimination against people 40 and over in hiring, termination, compensation, benefits, and other employment actions.

The consent decree is in effect for two years and requires Allen to:

• Pay $250,000 to the older workers against whom it discriminated;
• Offer health insurance to workers 65 and older; and
• Revise its policies to prohibit age discrimination and require training and investigations of such discrimination.

Mary Jo O’Neill, regional attorney for the EEOC’s Phoenix District Office, said:. “It violates federal anti-discrimination law . . . to force workers … to involuntarily retire because of their age. Employers should not impose their ideas about when older employees should quit working, especially for those employees who want to work, are qualified to work, and are doing a good job.”

The affected older employees expressed their gratitude to the EEOC for protecting their rights.

Take-Aways:

Employers must avoid discriminating against prospective and current employees on any protected basis, including age. Older people (defined as 40 years or older) qualified to work cannot be treated differently from anyone else.

For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

See also:

• Unsplitting Hairs: Race Discrimination Clarified (November 8, 2024)
• Superstore to Pay $75,000 for Disability Discrimination and Retaliation (August 30, 2024)

Helena Kobrin
May 9, 2025

For properly-classified “exempt” workers, California employers are not required to comply with certain labor laws, including overtime pay, timekeeping, and provision of meal and rest breaks.

To maintain exempt status, a business must pay the employee’s full salary for any workweek in which the employee performs any labor. There are no reductions for:

• Substandard quality or quantity of work;
• Inability to work solely due to the business’s operations (e.g., temporary closure for repairs);
• Disciplinary reasons; or
• Working fewer than scheduled hours. For example, if an employee works on Monday and serves on a jury for the rest of the week, they must still receive their full weekly salary.

However, an employer may reduce that weekly salary amount under specific circumstances:

• For absences of one or more full days for personal reasons (e.g., vacation) if not covered by accrued vacation/paid time off benefits, provided that the employee performs no work whatsoever on those days, including checking voicemails, texts or emails;
• For absences of one or more full days due to sickness if the employee has exhausted any available paid sick leave benefits (again, assuming the worker does no work on those days); or
• For working less than a full week during the first and/or last week of employment.

Take-Aways:

Consult with legal counsel to clarify any uncertainties regarding salary reductions.

For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

See also:

• California Invests $18 Million to Prosecute Wage Theft (March 8, 2024)
• California’s Exemptions from Overtime Pay (January 2012)
• Administrators and Overtime Pay in California (December 2011)
• The California Executive Exemption (November 2009)
• The California Administrative Exemption (November 2009)

Cindy Bamforth
May 2, 2025

In a rare victory for California employers, in Bradsbery v. Vicar Operating, Inc., a California appeals court ruled that employers and employees may enter into written break waivers for unspecified future meal periods under Labor Code 512 and Industrial Wage Commission Orders 4 and 5.

Labor Code 512 requires employers to provide 30-minute unpaid meal breaks for every five hours an employee works, while permitting employees and employers to jointly waive such breaks for work periods not exceeding six hours. It also permits waiver of a second meal period where the hours worked are not more than 12, if the first meal period was not waived.

In Bradsbery, the plaintiffs filed a class action seeking to invalidate written waivers for unspecified future meal periods. The court ruled against the employees. A written prospective meal break waiver is enforceable as long as it is consistent with Labor Code 512 and the Wage Orders, is revocable and not unduly coercive.

Such waivers can be simple, such as the one the Bradsbery court approved:

“I hereby voluntarily waive my right to a meal break when my shift is 6 hours or less. I understand that I am entitled to take an unpaid 30-minute meal break within my first five hours of work; however, I am voluntarily waiving that meal break. I understand that I can revoke this waiver at any time by giving written revocation to my manager.”

Employers may not retaliate against workers who refuse to sign such waivers.

Take-Aways:

This ruling permits employers to implement – or to continue use of -- such waivers so long as they comply with the requirements stated and employees freely agree to them.

For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

See also:

• Timekeeping Policy: Fourth Dimension Attention: It’s in the Cards (February 24, 2023)
• Employers Lose Food Fight: Break Premiums Ruled Wages, Must Be Reflected on Pay Stubs (June 3, 2022)
• Please: Document Workplace Meal Breaks: Require Employees to Clock Out and Back In on Their Meals (June 4, 2021)

Helena Kobrin
May 2, 2025

All employers must verify identity and work authorization for employees hired within the U.S., including citizens and non-citizens, using “Form I-9, Employment Eligibility Verification” (the I-9 Form).

The I-9 Form requires the employee to present specified documents and sign section 1 upon hire. The employer must review and verify the documents, record the information on section 2, and retain the fully-completed form for the longer of three years after the date of hire or one year after the date employment is terminated.

Employers must always use a valid, unexpired version of the I-9 Form or, alternatively, E-Verify’s web-based employment eligibility verification.

On April 2, 2025, U.S. Citizenship and Immigration Services (USCIS) released an updated, slightly modified I-9 Form (the 01/20/25 edition) which expires May 31, 2027.

Key updates include:

• Changing the term “gender” to “sex”;
• Changing the term “noncitizen” to “an alien authorized to work”; and
• Adding a Department of Homeland Security (DHS) privacy notice to the instructions.

The USCIS confirmed that although the new I-9 Form is now available for download, employers may continue using prior I-9 Form versions until their respective expiration dates.

Take-Aways:

Promptly implement the 01/20/25 edition and take all I-9 obligations seriously.

For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

See also:

• Hiring Authorized Workers – I-9 Forms Best Practices (July 5, 2024)
• I-9 Rules Change Again – Remote Verification Possible for E-Verify Users (August 17, 2023)
• No More Room for Zoom - I-9 Rules Are Tightening July 31, 2023 (June 16, 2023)

Cindy Bamforth

April 25, 2025