A North Carolina Walmart distribution center refused an employee’s intermittent leave request for a neurological issue in her hand and wrist. The company insisted she return to full duty or not at all, then terminated her after she protested its denial of intermittent work.

Her resulting complaint to the Equal Employment Opportunity Commission (EEOC) for disability discrimination and retaliation was one of over 29,000 nationwide for fiscal year 2023. On the EEOC’s suit on her behalf, Walmart settled for $75,000 and a prohibition from requiring full employee recovery before return to work. Walmart also must consider transfer from a warehouse to a store as reasonable accommodation and must post employee rights notices, provide annual training, and submit compliance reports.

The EEOC’s press release states: “Employer policies requiring employees to show that they are 100% healed, or can otherwise work without restriction, before returning from medical leave violate public policy and run afoul of the [Americans with Disabilities Act]. Further, the statute prohibits employers from retaliating against employees for seeking a reasonable accommodation. Such conduct has a chilling effect on the willingness of other employees to report unlawful conduct.”

Take-Aways:

Don’t retaliate against employees who seek accommodation for a disability. Have an interactive discussion and work out any reasonable accommodation. On reliable documentation there are no scheduling or other adjustments possible without an undue hardship, termination is a last resort.

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

See also:

• Gone Postal: USPS Tagged for Retaliation Against Injured Workers (August 9, 2024)
• Retaliation Wake-Up Call: Employer Discipline, Termination May Be Presumed Illegal (December 1, 2023)

Helena Kobrin
August 30, 2024

Dear Employers: Please, as soon as superhumanly possible, confront and upgrade workplace practices to full Labor Code compliance. It pains me to hear a procrastinator ask the cost of defense – the projected time, money, risk -- when facing a class action or “PAGA” (2004 Private Attorneys General Act) suit. As these cases involve so many factors, “expense more than you can likely imagine” is about as specific as one can get.

California class action and PAGA litigation is a growth industry with every viable business in the crosshairs. See, e.g., The Data Is In—California Class Action and PAGA Filings to Hit New Highs (January 12, 2024) (class actions filings have steadily risen since 2017 with a staggering 20% increase in 2023, over 5,000 cases statewide). See also PAGA Monster Grow More Legs – Best Protection Against Potentially Devastating Group Labor Claims is … Prevention (February 2, 2024) (for even a handful of irregular meal break timekeeping records for 30 workers, averaging 1.5 violations per week for one year, one company recently faced $468,000 in PAGA penalties).

Best practices demand an internal proactive wage audit to locate and fix improper pay practices before the process server comes knocking with summons and complaint. Critical compliance issues include:

• Independent contractor classification;
• Salaried worker classification;
• Pay periods and timing of payroll;
• Itemized wage statements;
• Timekeeping records, including rounding and accuracy of tracked time;
• Alternative workweek schedules;
• Compensation for minimum wage, overtime, reimbursed expenses, bonuses, commissions, piece rate, mileage, travel time, training time, mandatory meetings, sick pay, vacation or paid time off (PTO) pay;
• Meal and rest break practices;
• Fair Pay Act compensation for similar job duties;
• Interns and volunteers; and
• Remote worker compensation.

Take-Aways:

Our firm can help conduct friendly wage audits, from a small scale targeting of time and pay records to a thorough inspection of multiple wage-and-hour matters. Please, do it … now.

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

See also:

• PAGA Monster Declawed- Major Relief for Responsible Employers (June 28, 2024)
• Timekeeping Policy – Fourth Dimension Attention: It’s in the Cards (February 24, 2023)
• Please: Document Workplace Meal Breaks – Require Employees to Clock Out and Back In on Their Meals (June 4, 2021)

Tim Bowles
August 30, 2024

On August 20, 2024, a Texas federal court issued an injunction stopping the Federal Trade Commission’s (FTC) new non-compete regulation from taking effect on September 4.
See Freeing Enterprise: FTC Prohibits Employee Noncompetes (May 17, 2024).

Judge Ada Brown concluded the FTC overstepped its authority, calling the new rule arbitrary, capricious and groundless.

With several other district courts also addressing this regulation – one has already upheld it -- it will take the appeals courts, possible the U.S. Supreme Court, to resolve the issue.

For California-only employers, they can go back to their long-familiar California non-compete ban (see, Non-Compete No Nos [November 3, 2023]) and not worry about any differences between California and federal law.

Take-Aways:

Stay tuned for the next episode in FTC vs the federal courts. In the meantime, employers do not have to follow the federal non-compete ban.

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

See also:

• Friction-Resistant Workplace: Workplace Policy Handbook & Forms for 2024 (August 8, 2024)
• Sacramento Love Letter: Mandatory Non-Compete Notices Due February 14, 2024 (February 9, 2024)

Helena Kobrin
August 23, 2024

The nationwide “ban-the-box” movement is part of government’s effort to remedy blanket disqualification of persons with criminal records for any job. Ban-the box laws typically require employers to eliminate the criminal history question on a job application, reduce an employer’s accessibility to criminal records until after extending a conditional job offer, and require the criminal offense to be relevant for that job position for an employer to use it as a disqualifying factor.

Following San Francisco, Los Angeles, and California’s statewide Fair Chance Act, Los Angeles County has adopted the Los Angeles County Fair Chance Ordinance for Employers (FCO). See also, FCO Overview and Frequently-Asked Questions.

Effective September 3, 2024, the FCO applies to any employer -- including job placement agencies and non-profit organizations -- located or doing business in the unincorporated County that employs five or more employees.

The FCO also covers individuals whose employment (including independent contractors or freelancers) involves, or will involve, performing at least two hours of work on average each week within the unincorporated County.

Covered employers should pay particular attention to these points:

Job Postings and Workplace Notices:

Job postings must exclude language deterring those with criminal backgrounds from applying and must include language establishing FCO and Fair Chance Act compliance. If legally prevented from hiring individuals with a criminal history, the job posting must enumerate those laws or regulations. If the employer intends to conduct a criminal history check, the job posting must list all material duties of the specific position for which a criminal history may have a direct, adverse and negative relationship. Covered employers must also conspicuously display a notice about the FCO at every workplace and on webpages frequently visited by employees, freelancers or applicants.

Conditional Job Offer Letters, Procedures:

The conditional job offer letter must contain a complete list of all types of information, background or history the employer will review. If applicable, the letter must state the offer is contingent upon review of the criminal history and that the employer has good cause to conduct the background check for the specific job position based on specified “supporting justification.”

Criminal History Restrictions:

The employer cannot ask any criminal background questions until after the employer receives the criminal history report. Except for caregiver positions, covered employers may no longer inquire about or base an adverse action on a conviction over seven years old, measured from the date of disposition.

Rescinding the Conditional Job Offer:

The employer must carefully conduct a documented multi-step individualized assessment before withdrawing the conditional job offer.

Private Right to Civil Action:

There are substantial administrative penalties for an employer’s FCO violations. Also, an aggrieved individual can file a complaint against the hiring entity with the County’s Department of Consumer and Business Affairs (DCBA) and can bring a civil court action within one year thereafter.

Take-Aways:

Covered employers should carefully review the FCO’s extensive rules and restrictions; modify job postings, webpages, and conditional job offer letters; and implement a compliant hiring process before the September 3 deadline.

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

See also:

• Give Peeps a Chance – Civil Rights Department Sues Ralphs for Violating Fair Chance Act (January 26, 2024)
• Assessing Criminal Records in Hiring – New Regulations in Effect October 1, 2023 (September 29, 2023)
• Fair Warning: California Clamps Down on Fair Chance Act Violations (December 10, 2021)
• California Adopts Ban the Box Law (October 27, 2017)
• Banning the Box in Los Angeles – City Tightens Its Rules on Improper Use of Criminal Records to Deny Employment (March 23, 2017)

Cindy Bamforth
August 15, 2024

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

Clearly written Labor Code-compliant policies go a long way toward and hassle-free workplace and smooth working relationships, as well as minimizing the chances of worker legal claims.

“Tim's office makes HR matters so much easier! We just have to do what they tell us to do. We order their updated hiring forms and employee handbook each year, thus expanding our protections with the correct up-to-date wording. The hiring forms alone saved us thousands of dollars in one lawsuit.” ~ LO

Updated for 2024, our model forms include:

• Employment application and accompanying job description prototype (including key requirements for Americans with Disabilities Act compliance and California’s constitutional privacy protections);
• Pre-employment protocols (properly positioning the process to meet changing legal requirements);
• Employment agreement (including non-disclosure of private company data);
• Alternative dispute resolution agreement (also properly setting terms to match changing standards for private mediation and arbitration in lieu of court action);
• Meal and rest period acknowledgments (confirming employer provision of required breaks);
• Termination policy, checklist and standard release (to be applied as appropriate for full transition and greater protection against later, preventable suits);
• Paid sick leave benefits under federal and California directives; and
• Revised workforce COVID protocols.

Our comprehensive 80-plus page model employee handbook, 2024 edition, covers:

• Conditions of company employment (including mutual “at will” termination rights);
• Discrimination and harassment, prevention and handling (including pandemic-driven standards);
• Employee compensation;
• Employee benefits;
• Employee job performance;
• Limits of employee privacy (including valid management access to employee-maintained databases and social media guidelines);
• Paid and unpaid leaves;
• Workplace health and safety;
• Job-related injury or illness (including prevention plan priorities); and
• Drug and alcohol policy (including testing and violations procedures and standards).

CONTACT US TO ORDER NOW
To order or for more information, contact Office Manager Aimee Rosales at 626.583.6600 or email her at officemgr@tbowleslaw.com

Law Offices of Timothy Bowles
August 8, 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-Aways:

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:

• Pregnancy Disability Leave Policy (August 2, 2023)
• Attendance and Absence Policy (June 22, 2023)

Tim Bowles
July 26, 2024