Triggered by an Occupational Safety and Health Administration (OSHA) investigation, the federal Department of Labor (DOL) sued the U.S. Postal Service, obtaining a court approved settlement over USPS's alleged retaliation against three probationary employees for reporting workplace injuries. The resolution affects 59 post offices in Washington state, following DOL retaliation suits against the USPS in Oregon, California, and Pennsylvania since 2020.

The settlement bars repeat retaliation and directs $187,732 paid to the illegally terminated employees for lost wages, interest, and other damages.

Regional Solicitor of Labor Marc Pilotin stated:

"By issuing the broadest permanent anti-retaliation injunction to date, the U.S. District Court has recognized the U.S. Postal Service's pattern of ignoring its own policies and unlawfully firing probationary workers who report injuries. The agency's repeated and unlawful disregard of federal laws against employee retaliation has caused financial and emotional harm to workers and their families. This retaliatory conduct must stop at once."

"This landmark injunction sends a clear signal to employers that retaliation -- in any form -- against employees who report workplace injuries will not be tolerated. The U.S. Department of Labor will continue to enforce federal protections of workers' rights rigorously and combat retaliation. With this action, the USPS' unlawful firings of probationary employees must come to an end. Immediate changes must be made to prevent these kinds of baseless, hurtful and unlawful terminations."

Other agreement terms include:

• Giving injured probationary employees what they need to file workers compensation claims;
• Allowing them equal opportunity to pass probation;
• Having all terminations of injured probationary employees reviewed by a labor relations or human resources officer; and
• Giving employees notice and training on rights to report workplace injuries and associated medical restrictions.

Take-Aways:

Private employers have the same responsibility to honor injury claims as the USPS is now specifically directed to do. Businesses must refrain from all retaliation against injured workers.

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

See also:

• A Memorable $3.6M Lesson: "Unforgettable" Roofing Co. Hit for Knee-Jerk Retaliation and Intimidation (December 4, 2023)
• Retaliation Wake-Up Call: Employer Discipline, Termination May Be Presumed Illegal (December 1, 2023)
• Pay Back on Retribution: Complaining Employee to Collect For Psychiatric Center's Retaliation (October 1, 2021)

Helena Kobrin
August 9, 2024

New Division of Occupational Safety and Health (Cal/OSHA) indoor heat illness prevention regulations go into effect July 23, 2024. They apply to all indoor workplaces with temperatures of 82 degrees F or more when employees are present. Employers must take additional measures when the indoor temperature is at least 87 degrees F.

In such workplaces, employers must provide:

• At least one cool-down area as close as possible to the work area and sufficient to accommodate the needed number of employees on breaks and at meals so they can sit without touching each other. Temperature in such an area must be lower than 82 degrees F. Employers must permit and encourage preventative cool-down rest breaks at any time, monitor employees taking breaks for signs of heat illness, encourage them to remain in the cool-down area as needed, and not order them back to work with any signs of heat illness (five-minute minimum on top of the time to get to the cool-down area and back). Employers must also provide first aid or emergency response when there are symptoms of heat illness symptoms or reports; and

• Free, fresh, pure, and cool potable water as close as possible to work areas and in indoor cooldown areas. If not available via plumbing, employers must provide enough water so that each employee has access to one quart per hour and must encourage workers to drink the water.

For employees working in 82 degrees-plus F temperature or heat index (temperature plus humidity level, chart provided in regulations Appendix) who wear clothing restricting heat removal or working in a high radiant heat area, or those present in a work area with a temperature or heat index of 87 degrees F or higher, employers need to:

• Measure the temperature and heat index and keep accurate records of the higher of the two for the later of 12 months or until the next measurement is taken, and also identify any other heat illness environmental risk;

• Take the required measurements per the methods and at the times specified in section (e) of the regulations; and

• Have effective methods to actively involve employees and union representatives in the measuring and recording activities and identification of other environmental risk factors.

The regulations also prescribe use of engineering and administrative controls, personal heat-protection equipment emergency response, and acclimatization procedures for newly-assigned employees. They also require training on heat illness risks, employer procedures for compliance with indoor heat illness protections, consumption of sufficient water, acclimatization, types of heat illness, including symptoms, procedures for symptom response and contacting emergency medical services when needed, as well as how to provide clear directions to the worksite if such emergency services are needed. Supervisors must receive additional training.

Exempt from the regulations are:

• Local detention facilities, juvenile facilities, and prisons;

• Incidental exposures to temperatures of 87-92 degrees for 15 minutes or less, unless in a vehicle with non-functional air conditioning or shipping container;

• Remote work from a location chosen by the employee and not controlled by the employer; and

• Emergency operations to protect life or property.

Cal/OSHA provides further guidance:

FAQs: https://www.dir.ca.gov/dosh/heat-illness/indoor-faq.html

Educational Materials and Other Resources, including a Model Plan: https://www.dir.ca.gov/dosh/heat-illness/Indoor-HIP-Resources.html

Fact Sheet: https://www.dir.ca.gov/dosh/dosh_publications/Indoor-Heat-Employers-fs.pdf

Webinars on the new requirements on August 6 and 12, 2024. See https://www.dir.ca.gov/oshsb/documents/Indoor-Heat-updated-txtbrdconsider.pdf .

An employer may include its indoor heat illness measures in its Injury and Illness Prevention Plan, Heat Illness Prevention Plan, or in a separate document.

Take-Aways:

The regulations apply to any workplace subject to indoor heat illness conditions, for example warehouses and restaurants. Even an air-conditioned facility may become subject to the new regulations if that equipment goes down. Affected businesses must comply to protect their workforces and avoid penalties.

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

See also:

• Scorch Prevention - Protecting Workers from Heat Illness (May 30, 2024)
• Keep Employees Safe (June 30, 2023)
• No Confined Space Canary: Four Companies Cited $1.75 Million for Worker's Suffocation Death (May 27, 2022)

Helena Kobrin
August 2, 2024

As previously reported, effective June 1, 2024, Senate Bill 525 created Labor Code sections 1182.14 and 1182.15 to substantially increase minimum wage for health care workers in various facilities, eventually raising the minimum wage to $25/hour, superseding local minimum wage laws.

On June 29, 2024, Governor Newsom signed Senate Bill 159 which, among other things, added Labor Code section 1182.16 to delay the implementation of all such minimum wage hikes until either:

1. State revenues, from July 1, 2024 through September 30, 2024, are at least three percent higher than initially projected in order to finance the wage increase in state-run hospitals, in which case the minimum wage increases shall occur on October 15, 2024, or

1. The Department of Health Care Services (DHCS) notifies the Joint Legislative Budget Committee (Budget Committee) that it has taken legally-required steps to implement increased funding of supplemental Medi-Cal program payments, in which case the minimum wage increases shall occur the earlier of January 1, 2025, or 15 days after the date of DHCS's notification.

Take-Aways:

Covered health care employers must closely monitor and prepare for the effective date of these minimum wage increases.

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

See also:

• California Minimum Wage Mid-Year Rate Increases (June 28, 2024)
• 5.5M To Settle Wage Theft Claim, Elderly Care Provider Fought Underpayment Citations for Five Years (January 5, 2024)

Cindy Bamforth
July 31, 2024

In a rare act of limiting the reach of California's workplace discrimination laws, an appeals court has denied pregnancy leave protection to a worker allegedly fired for taking time off for egg retrieval and freezing procedures. Paleny v. Fireplace Products (June 27, 2024).

The Fair Employment and Housing Act (FEHA) directs employers with at least five on payroll to provide pregnancy disability leave (PDL), transfer and/or other reasonable accommodation due to pregnancy, childbirth, or a related medical condition. A woman is "disabled by pregnancy" by a medically confirmed (i) inability because of pregnancy to perform any one or more of her job's essential functions without undue risk to herself, her baby, or others; or (ii) pregnancy-related suffering from severe morning sickness, required time off for prenatal or postnatal care, bed rest, gestational diabetes, or other pregnancy-related physical conditions. Emphasis supplied. See, Pregnancy Accommodation in California (November 15, 2018)

Erika Paleny sued her employer and supervisor for FEHA-prohibited harassment, discrimination, and retaliation after she notified management in 2018 of planned oocyte (egg) retrieval procedures to donate as well as freeze eggs for her potential but indefinite future use.

The trial judge dismissed her claim as outside FEHA/PDL protections. The Court of Appeal has agreed, finding Ms. Paleny was not pregnant, disabled by pregnancy, nor suffering from a related medical condition. "[T]here is no evidence, nor a reasonable inference, that [Ms. Paleny] was undergoing the egg retrieval procedure because of [any pregnancy related] medical condition," including any procedure "to become pregnant." ... We see a distinction between a medical procedure related to possible future pregnancy and a [FEHA-protected] pregnancy-related medical condition."

However, Ms. Paleny's loss may be a one-off. In response to the U.S. Supreme Court's 2022 cancelation of constitutionally protected abortion rights, the Legislature expanded FEHA's protections in 2023 to include "reproductive health decision making" (including, but not limited to "a decision to use or access a particular drug, device, product, or medical service for reproductive health").

While Ms. Paleny's chosen action might well be protected today, the disputed events were in 2018. The appeals court found nothing making the expanded law retroactive.

Take Away:

With FEHA's reach over reproductive decision making after 2022, "pregnancy disability protection" is too narrow a concept. Management must place particular attention to any requested accommodation related to reproduction.

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

See also:

• Smooth Sailing - Workplace Policy Handbook & Forms for 2024 (July 3, 2024)
• Pregnancy Disability Leave Policy (August 2, 2023)
• Attendance and Absence Policy (June 22, 2023)

Tim Bowles
July 26, 2024

The federal Department of Labor, through its Wage and Hour Division (WHD) and Occupational Safety and Health Administration (OSHA), has secured a $753,500 judgment against three Rhode Island nail salons and their owner for:
$265,000 in unpaid overtime for 70 employees;
$265,000 "liquidated" (automatic) damages;
$12,500 punitive damages for forcing employees to sign false documents;
$168,000 to one employee, terminated and threatened for complaining about illness from exposure to undiluted sanitizer; and
$23,500 to another employee the owner threatened.
The defendants also must train supervisors against retaliation; have a payroll monitor for two years; facilitate labor practices education for the salon industry and post employee rights notices in three languages.

Boston Regional Solicitor of Labor Maia Fisher stated: "Unfortunately, workers face several types of unlawful conduct by their employers, including unfair wages, unsafe working conditions and retaliation. When workers' rights are violated under multiple statutes, the U.S. Department of Labor will move decisively to vindicate their rights in as holistic a way as possible."

Take-Aways:

$753,500 is a lot of manicures. Business survival depends on commitment to workplace compliance long before government authorities come calling.

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

See also:
Age Claims Never Grow Old: San Diego Employer Steps in It (April 19, 2024)
Staffing Agency Meltdown: Discrimination Settlement Shuts Down National Firm (April 12, 2024)
A Memorable $3.6m Lesson: "Unforgettable" Roofing Co. Hit for Knee-Jerk Retaliation and Intimidation: Not So Fondly Recollected (March 17, 2023)
Helena Kobrin
July 19, 2024

Fred Meyer Stores, Inc. is a northwest supermarket institution, a rags-to-riches monument. Namesake Frederick G. Meyer (originally Frederick Grubmeyer) began in Portland, Oregon in 1908, "selling coffee from a horse-drawn cart to workers at farms and lumber camps." https://www.fredmeyer.com/i/community/history. The chain's watchword for a century-plus has been Customer service (with a capital "C"), a safe, convenient and now gargantuan one-stop shopping experience emulated by Target and others.

Challenging the "safe" aspect, the federal U.S. Equal Employment Opportunity Commission (EEOC) has filed suit under Title VII of the Civil Rights Act, charging management allowed a male employee at its Richland, Washington store "to sexually harass multiple female employees over a period of years despite repeated complaints about his unlawful behavior."

The government alleges that employee "repeatedly subjected his female coworkers to sexual harassment, including wolf-whistling, leering, and degrading sexual comments about their bodies and appearance, as well as groping one female co-worker in the workplace. He also followed female employees around the store and into the company's parking lot after their shifts, and attempted to follow one female employee with his car as she left the company's parking lot."

The suit claims that while company management eventually issued warnings to the worker, he continued to harass his female coworkers for years, until finally terminated in 2021.

Citing Title VII's zero tolerance standard, the EEOC's press release reminds that "[t]he law makes clear that every worker has a right to a workplace free from sexual harassment. For that reason, once an employee makes a complaint of sexual harassment, employers are required to take prompt, appropriate, and effective measures to make the harassment stop."

Take Aways:

Regular education of company management on the scope of anti-harassment laws and their responsibility to protect employees from over-the-line behavior is a given. Zero-tolerance policies and effective address of any reported violation should be prime priorities for any business, whether employing one or thousands.

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

See also:

• Defining "No," Mandatory Sexual Harassment Prevention Training (June 7, 2024)
• 72 Million Reasons Not to Mess With Women - Employer Agrees to End Widespread Sex Discrimination (February 16, 2024)
• Take Heed: Responding to Harassment and Discrimination Complaints Correctly (July 28, 2023)
• Tracking Down Discrimination: EEOC 2020 Report: Retaliation, Disability Claims Predominate (April 16, 2021)

Tim Bowles
July 19, 2024

Several California laws prohibit employers from taking action against workers for political activities, affiliations or speech.

The California Supreme Court recognizes protected "political activities or affiliations" broadly as any action connected with the orderly conduct and peaceful organization, regulation, and administration of government. Violent conduct is not protected.

Under Labor Code 1101, employers may not impose policies, rules, or regulations that: (i) exert control over employee political affiliations or activities; or (ii) prohibit employees from participating in political activities (including running for public office).

Under Labor Code 1102, employers may not coerce employee political party activity, for example threaten to terminate any worker for such actions.

A corporation's violation of Labor Code 1101 or 1102 carries a fine up to $5,000. An individual's violation is a misdemeanor punishable by imprisonment for up to one year, a fine up to $1,000 or both. Labor Code 1103. An injured employee may also bring suit for damages. Labor Code 1105.

The Ralph Civil Rights Act, Civil Code 51.7, prohibits all acts or threats of hate violence against an individual for actual or perceived political affiliation. See Civil Rights Department (CRD) "fact sheet." Targeted persons may seek civil suit compensation, punitive damages, injunction, attorney fees and civil penalty of up to $25,000.

Under the federal National Labor Relations Act (NRLA), non-union and union employees are protected from employer repercussion for discussing labor issues or political candidates on either side of such topics.

On the other hand, management will not cross these lines when informing employees and stockholders on the possible impact of proposed state legislation, regulations and ballot measures. See California Chamber of Commerce guideline pamphlet.

Of course, employers must also maintain a harassment- and distraction-free workplace. See Take Heed: Responding to Harassment and Discrimination Complaints Correctly (July 28, 2023). Management is thus within its rights - and must take responsibility - to limit worker political advocacy to off-hours and off-premises.

Take-Aways:

Employers must respect employee political convictions and not penalize any worker for holding or acting on his or her beliefs. Best practices include clear policy balancing that deference with management's prerogative to limit the time and place of political exercise in equal regard for a productive, distraction-free workplace.

For further assistance, please contact one of our attorneys, Tim Bowles, Cindy Bamforth or Helena Kobrin.

See Also:

• Smooth Sailing: Workplace Policy Handbook & Forms for 2024 (July 3, 2024)
• Handbook Helper Episode 42: Work Time Off for Voting (June 7, 2024)
• Handbook Helper Episode 3: Name Your Passion (June 30, 2022)

Helena Kobrin
July 12, 2024

Employers must properly complete a Form I-9, Employment Eligibility Verification (the I-9 Form) for every new hire.

Best practices:

• Always use the current I-9 Form edition;
• Require the employee to complete section 1 by the first day of work (but never before accepting the job offer);
• Complete employer section 2 within three business days of the employee's first day of work;
• Conduct in-person document inspections. For fully remote long-distance hires, employers may need to designate an "authorized representative," such as a local law firm, human resources consultant, or notary public to conduct the in-person inspection. In California, authorized notaries public must be registered and bonded as immigration consultants;
• Employers enrolled in E-Verify may use an optional alternative procedure to verify Form I-9 documents electronically through live video interaction in lieu of in-person inspections.
• Retain I-9 Form records for at least three years from the hire date or one year from termination date, whichever is longer;
• Store all I-9 Forms in a secure location separate from the employee's personnel file;
• Consider keeping one set of completed I-9 forms for active employees and one set for former employees; and
• If applicable, carefully comply with UCIS's electronic storage system requirements.

Take-Aways:

Employers must take their I-9 obligations seriously. For further guidance on completing the I-9 Form, correcting errors or missing information, retaining the I-9 Form, and reverifying documents for current or rehired employees, employers should refer to the U.S. Citizenship and Immigration Services (USCIS)'s comprehensive "M-274: Handbook for Employers: Guidance for Completing Form I-9".

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

See also:

• Team Building Insurance Workplace Policy Handbook & Forms for 2024 (May 22, 2024)
• I-9 Rules Change Again - Remote Verification Possible for E-Verify Users (August 17, 2023)
• National Origin Discrimination Clarified - New California Regulations (June 1, 2018)

Cindy Bamforth
July 5, 2024

For more than a decade, use of California's Private Attorneys General Act (PAGA) against conscientious employers - holding many up for civil suit ransom as the better choice to business closure - has grown to pandemic proportions with little benefit to the workers the law was designed to protect.

"Since 2013, employers have been forced to pay nearly $10 billion in PAGA court case
awards, but because of the class-action nature of many claims and heavy lawyer
commissions, workers receive only a small portion of these awards." California's Private Attorneys General Act of 2004: An Assessment of Outcomes and Recommendations for a More Effective Alternative (February, 2024).

With credit to such advocacy, the legislature has just passed and the governor will soon approve a PAGA overhaul. Key provisions in revised Labor Code 2699 include:

● Scope of Claims Significantly Reduced: The plaintiff employee must have personally experienced the alleged violations;
● Greater Employer Ability to Cure Violations: On written PAGA notice from the state, the employer may promptly cure a greater range of technical violations without penalty;
● Greater Employer Share in Proceeds: Employees will receive 35% of any PAGA settlement or judgment, up from 25%;
● Pre-Notice Cap on Penalties: For employers which take steps to comply with the Labor Code before receiving a PAGA notice, the maximum penalty is 15% of the applicable maximum amount;
● Post-Notice Cap on Penalties: For employers which promptly take steps to fix policies and practices after receiving a PAGA notice, the maximum penalty is 30% of the applicable penalty amount;
● Additional Penalty Reductions Possible: An employer may receive a penalty reduction for an alleged violation of minimum impact, for example for a pay stub violation that did not cause employee confusion or economic harm; and
● Court Discretion to Limit Claims at Trial: The judge may limit at trial the scope and evidence of claims in the interest of justice.

Take Away: PAGA as modified places a premium on an employer's responsibility for workplace compliance while providing significant incentives for rapid correction of violations. An employer that does not heed its obligations to comply despite PAGA notice can only point to its inaction as the cause of the severe economic consequences, even business closure.

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

See also:

● PAGA Monster Grows More Legs - Best Protection Against Potentially Devastating Group Labor Claims is ... Prevention (February 2, 2024)
● PAGA Monster Quelled ... For Now - Appeals Court Overturns Wal- Mart's $102 Million Penalty and Damages Judgment (July 2, 2021)
● The PAGA Monster Is Hungry - Non-Compliant California Employers at High Risk under Special Law (May 14, 2021)

Tim Bowles
June 28, 2024