On the recent trend to direct workers back to the office, employers should not overlook teleworking as a reasonable accommodation for a disabled employee.

The Equal Employment Opportunity Commission (EEOC) has sued Federal Express Corporation under the Americans with Disabilities Act (ADA) for its refusal to accommodate a disabled 30-year dispatcher’s request to telework because of physical disabilities affecting her ability to walk.

FedEx cited an “operational need” for all dispatchers to work in-office, which the EEOC rejected, citing that the company had remote dispatching for three years during the pandemic.

EEOC Regional Attorney Kimberly A. Cruz stated:

Allowing an employee to work at home can be a reasonable accommodation where the person’s disability prevents them from successfully performing the job on-site and the job, or parts of the job, can be performed at home without causing significant difficulty or expense. Before denying such accommodation requests, companies must sincerely evaluate whether the accommodations can be made, whether they would require significant difficulty or expense, and/or whether alternative accommodations exist.”

Take-Aways:

Management must engage in an interactive process with disabled employees to find reasonable accommodations short of undue hardship to the employer.

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

See also:

• Pregnant Worker Discrimination: Company Pays Big for Brushing Off Accommodations (February 6, 2025)
• Religious Ruling Favors Employees: Supreme Court Requires Accommodation Unless Substantial Cost Burden (September 1, 2023)
• Bathroom Discrimination: EEOC: Walmart Failed to Accommodate Disabled Worker’s Toilet Trips (April 14, 2023)

Helena Kobrin
March 7, 2025

California Division of Occupational Safety and Health (Cal/OSHA) has issued $529,640 in citations to Smelly Mel’s Plumbing and Sewer Rat Plumbing after a trench collapsed on a San Mateo sewer line construction site, seriously injuring a worker buried under debris.

The citations were for:

• Lack of daily safety inspections by a competent person;
• No safe exit routes from the trench, such as a ladder;
• No protective systems in the trench to prevent collapse;
• No protection from falling debris;
• No adequate protection for workers feet, causing foot injuries from jack hammer usage;
• Inadequate trained first aid providers onsite;
• No permit; and
• Lack of toolbox safety meetings onsite, as per Illness and Injury Prevention requirements.

Cal/OSHA Chief Debra Lee stated that: “Trench collapses remain one of the most serious hazards in construction, and employers must take all necessary steps to protect their employees. These citations serve as a reminder that businesses must prioritize worker safety, especially during high-risk operations to avoid tragic accidents.”

Take-Aways:

Employers must not ignore safety, including the state-mandated Illness and Injury Prevention Program (IIPP). Workers’ health and even lives -- and the avoidance of potentially enormous fines -- depend on having proper safety precautions.

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

See also:

• Not So Safeway?: Cal/OSHA Cites Supermart for Serious Hazardous Conditions in Warehouse (February 14, 2025)
• Maul Wake-Up Call: Cal/OSHA Fines LA Animal Shelter For Overcrowding, Staff Injuries (January 3, 2025)
• Gone Postal: USPS Tagged for Retaliation Against Injured Workers (August 9, 2024)

Helena Kobrin
February 28, 2025

California Labor Code section 515.6 exempts certain licensed physicians and surgeons from overtime compensation upon receipt of specified minimum hourly compensation.

California’s Department of Industrial Relations (DIR) has announced its rate increases for this minimum, effective January 1, 2025, to $103.75, up from $101.22, reflecting the 2.5% increase in the California Consumer Price Index for Urban Wage Earners and Clerical Workers.

To avoid California overtime premium rates, employers will need to pay such eligible professionals that minimum hourly rate, keeping accurate track of hours worked.

An exempt physician or surgeon must also meet each of the Labor Code section 515.6 skills and duties criteria. Among these, the employee must be “primarily engaged” (more than 50% of the time) in duties requiring licensure.

California Business and Professions Code section 2052 specifies such duties, requiring a medical license for anyone who “diagnoses, treats, operates for, or prescribes for any ailment, blemish, deformity, disease, disfigurement, disorder, injury, or other physical or mental condition of any person.”

Physicians and surgeons paid on a salary basis will not qualify for this exemption, but may otherwise qualify for the administrative, executive or professional exemptions from overtime. Each category possesses its own distinct requirements.

See also:

• California Invests $18 Million to Prosecute Wage Theft (March 8, 2024)
• Overtime Policy – Burning the Midnight Oil (March 9, 2023)

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

Cindy Bamforth
February 19, 2025

When Cal/OSHA inspected Safeway’s large warehouse in Tracy, CA, it found “significant safety violations” meriting $182,000 in penalties.

The eight serious violations and 19 others put 1,700 workers in danger from:

• Indoor heat hazards for the un-air-conditioned building, including lack of access to cool-down areas;
• Electrical hazards, including damaged cords and electrical panels;
• Manual material handling issues connected to carrying and lifting heavy objects;
• Chemical hazards, including improper ventilation for welding and lack of eye wash facilities;
• Recordkeeping violations for inadequate record of annual employee injury/illness and untimely reporting to Cal/OSHA; and
• Inadequate truck operator training.

Cal/OSHA Chief Debra Lee stated: “It is critical that employers recognize the physical demands and potential dangers faced by warehouse workers and take measures to protect their safety. Our inspection revealed that Safeway’s demanding warehouse quotas put its workers at risk of serious injury.”

Take-Aways:

Employers must make safety protocols and practices a priority, to protect their workers and to avoid penalties. They should have an Injury and Illness Prevention Program, including for indoor and outdoor heat illness prevention and should follow it.

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

See also:

• Chill Skill: California’s New Indoor Heat Rules July 23, 2024 (August 2, 2024)
• Scorch Prevention: Protecting Workers from Heat Illness (May 30, 2024)
• Keep Employees Safe (June 30, 2023)

Helena Kobrin
February 14, 2025

Castle Hills Master Association Inc. (Castle Hill), the Texas employer of a disabled pregnant worker, failed to accommodate her time-off request for doctor-prescribed bed rest because she was ineligible for Family and Medical Leave or short-term state disability benefits. Instead, the property management company terminated her.

The Equal Employment Opportunity Commission (EEOC) filed court charges against Castle Hill for violation of the Americans with Disabilities Act (ADA).

The parties settled the case. Castle Hill is paying the pregnant worker $55,000 and will take measures to ensure employment opportunities for disabled individuals. It will also create protocols for handling reasonable accommodations for disabilities and train all employees on the protocols and ADA.

Dallas EEOC District Regional Attorney Robert A. Canino said, “It is important for employers to remember their duty to provide reasonable accommodation under the ADA, including the accommodation of leave, even when the employee does not qualify for FMLA or other employer-sponsored leave benefits.”

Take-Aways:

Employers should know and follow federal and state laws on reasonable accommodation of employee disabilities and engage in an interactive process to address accommodation needs. Presuming a person with disabilities has no rights if he or she has exhausted any state or federal leave time or cannot collect state benefits can be a very expensive error.

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

See also:

• Accommodate, Don’t Retaliate: Superstore to Pay $75,000 for Disability Discrimination and Retaliation (August 30, 2024)

Helena Kobrin
February 6, 2025

California Labor Code section 515.5 exempts certain computer software professionals from overtime compensation upon receipt of specified minimum compensation.

California’s Department of Industrial Relations (DIR) has announced its rate increases for this minimum, effective January 1, 2025, to $56.97, up from $55.58. Alternatively, an otherwise qualified salaried employee is eligible on minimum annual compensation of $118,657.43, up from $115,763.35, payable at least once monthly at no less than $9,888.13.

An exempt computer professional must also meet each of the Labor Code section 515.5 high-level skills and duties criteria. Among these, the employee must be “primarily engaged” (more than 50% of the time) in intellectual or creative work requiring the exercise of discretion and independent judgment such as:

• applying systems analysis to determine “functional specifications” of hardware, software or systems
• designing computer systems or programs; and/or
• documenting, testing, creating or modifying computer programs related to computer systems software or hardware design

Although these workers need not be paid overtime premium under California law, employers should further ensure they meet the comparable federal law exemption, which includes a less restrictive definition of “primary” duty, a lower hourly/salaried threshold, and similar skills and duties tests.

Such computer professionals may also qualify for the administrative, executive or “learned profession” exemptions from overtime. Each category possesses its own distinct qualifications.

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

See also:

• Overtime Policy – Burning the Midnight Oil (March 9, 2023)

Cindy Bamforth
January 28, 2025

“Knowledge is power” is cliché, but true.

California heads the nation in regulating employee relations. While workplace laws usually arise to police the few employers crossing the line into worker exploitation, they subject the vast bulk of well-intentioned businesses to thousands of technical rules requiring close attention.

Enacted in 2004, the Private Attorneys General Act (PAGA) has become the epitome of our state’s intensive employment practices oversight. It is also the curse for a growing number of businesses that law has driven to the point of bankruptcy or exodus to more employer-friendly lands.

PAGA was originally intended to deter widespread Labor Code violations by deputizing employees to act as private attorneys to sue employers in place of the state. The suit need only name one aggrieved employee (former or current) to represent all others and collect penalties for each of the confirmed violations. Money recovered goes to the state and the affected employees, with a losing employer also paying successful opposing lawyers their fees and costs.

With penalties ranging from $10,000 [independent contractor misclassification] and $100/per violation, even minor non-compliance can be devastating. For example, if an employer underpaid 20 aggrieved employees overtime every week over 18 months, this would equal 1,560 “workweek” violations. This single violation thus carries possible $150,600 minimum penalty (1,560 x $100 minimum).

This business-crushing potential lead the legislature in 2024 to provide some greater options for employers to examine, detect and cure violations before and after being hit with a PAGA suit. See, Workplace Roulette, Reducing the Odds of PAGA Purgatory (December 13, 2024).

While future articles will cover those “cure” alternatives in greater detail, the greatest protection is initiative to review, spot and fully remedy violations before a dissatisfied employee and his lawyer contemplate a PAGA challenge.

Take-Aways:

Best practice demands periodic “friendly” internal audits to know whether workplace practices are in- or out-of-compliance in California’s highly regulated climate. In many cases, the cost to fix any problems found before PAGA comes knocking is a business-saving investment.

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

See also:

• PAGA Monster Declawed; Major Relief for Responsible Employers (June 28, 2024)
  
• PAGA Monster Grows More Legs – Best Protection Against Potentially Devastating Group Labor Claims is … Prevention (February 2, 2024)
  
• The PAGA Monster Is Hungry – Non-Compliant California Employers at High Risk under Special Law (May 14, 2021)

Tim Bowles
January 24, 2025

AB 2299 requires employers to “prominently display in lettering larger than size 14 point type” a list of whistleblower rights and responsibilities and the state’s reporting hotline telephone number(s). It tasked the Labor Commissioner (LC) with publishing a sample list. See What’s New In 2025 Whistleblower Posting: January 1, 2025 Implementation Deadline, Updated Notice Soon Available (October 4, 2024).

That LC model whistleblower notice is now available online. While employers are not required to use the state’s template, there is no evident reason to re-invent the wheel.

Take-Aways:

Without delay, employers should post prominently in an employee-frequented area the LC model notice or an alternative.

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

See also:

• No Racial Epithets: Keep Harassment and Retaliation Out of the Workplace (October 25, 2024)
• Retaliation Wake-Up Call: Employer Discipline, Termination May Be Presumed Illegal (December 1, 2023)

Helena Kobrin
January 24, 2025

The federal Department of Labor (DOL) Wage and Hour Division (WHD) has cited Naya Ding, Inc., owner of Rowland Heights restaurant, Ma’s Kitchen, $17,311 for unpaid overtime and an illegal tip pool.

The restaurant distributed only a portion of tips to the employees and kept the rest. It also did not maintain correct time records and failed to pay some employees overtime for work over 40 hours.

WHD’s Rafael Valles stated: “Burdening employees with business expenses takes hard-earned wages out of workers’ pockets. That’s why the U.S. Department of Labor is committed to ensuring employers pay workers their fully earned wages in compliance with federal law, and its Wage and Hour Division will use every enforcement tool necessary to resolve cases like this.”

California law and federal law prohibit management from sharing in employees’ tips. Tip pooling with other service workers, such as cooks and bussers, is permitted.

Take-Aways:

Employers must pay all overtime employees earn and may never keep a portion of employees’ tips.

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

See also:

• California Invests $18 Million to Prosecute Wage Theft (March 2024)
• Mais No, Cheapo: French Restaurant Accused of Tip Theft (January 2024)

Helena Kobrin
January 13, 2025