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Employers must provide unpaid leave of any length to victims of crimes or public offenses (domestic violence, sexual assault, stalking, or crimes causing physical or mental injury), as well as to those threatened with physical injury...
Employers must provide unpaid leave of any length to victims of crimes or public offenses (domestic violence, sexual assault, stalking, or crimes causing physical or mental injury), as well as to those threatened with physical injury (Crime Leave). Crime Leave enables time to address related issues, including court appearances or obtaining legal relief such as a restraining order to protect against further violation to the victim or his/her child. Crime Leave is also available to employees needing time following the crime-related death of a family member.
An employee may use available accrued vacation, paid sick leave, or other paid time off that is available to him or her.
Absent an exception (e.g., intervening business needs), employers must reinstate a returning employee to his or her former position or an equivalent position.
Short of unexpected circumstances, an employer may require reasonable advance notice of intended Crime Leave. For an unscheduled absence, within a reasonable time, employee must furnish a police report, court order, medical or counseling attestation, or any other writing that reasonably verifies the crime or abuse occurred.
An employer must keep the employee’s identity private except as required by law or as necessary to protect the employee’s workplace safety. Management must notify the employee before any such disclosure.
Employers are also responsible for reasonable accommodations for employees seeking personal safety at work.
For employers with at least 25 on payroll, employee victims may also request additional leave for medical attention; to obtain help from a domestic violence shelter, program, rape crisis center, or victim services organization or agency; for counseling; and to take safety precautions such as temporary or permanent relocation, provided the total leave does not exceed twelve (12) weeks in a 12-month period.
Policy Drafting Tip:
Take-Aways:
Implement and regularly review your handbook to include all applicable leave policies, including voting leave, and educate and train your supervisors on these laws.
We publish this series to educate employers on best practices for a well-written handbook that assists applicants, employees, and management alike. To purchase our 2024 template handbook – which contains the above policy and much more – and accompanying forms or for more information, please contact Office Manager Aimee Rosales at 626.583.6600 or officemgr@tbowleslaw.com.
See also:
Helena Kobrin
June 21, 2024
As previously reported , effective July 1, 2024, California employers of any size must develop an effective workplace violence prevention plan (the Plan) for each work area and operation; provide violence prevention training; maintain...
As previously reported, effective July 1, 2024, California employers of any size must develop an effective workplace violence prevention plan (the Plan) for each work area and operation; provide violence prevention training; maintain violence incident logs; and keep records of incident investigations and hazard identification, evaluation and correction.
The law does not apply to:
To assist covered employers, the California Chamber of Commerce has authored a free white paper.
California Division of Occupational Safety and Health (Cal/OSHA) has issued an employer fact sheet and released a model workplace violence prevention plan.
That model plan addresses:
That agency has also published frequently asked questions, which define workplace violence, explain how to make the Plan accessible to employees, and confirm the July 1, 2024 training deadline.
Take-Aways:
Covered employers must hasten to adopt a legally complaint, comprehensive workplace violence prevention plan and implement the required training by the July 1 deadline.
For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
See also:
Cindy Bamforth
June 20, 2024
California employers must abide by a spate of rules and tests governing independent contractor classification.
California employers must abide by a spate of rules and tests governing independent contractor classification. California’s strict “ABC” test considers all workers employees unless a company can establish that the worker (a) is free from its control and direction; (b) performs work outside the usual course of the company’s business; and (c) operates as an independent business of the same nature as the work performed.
The California legislature created several somewhat arbitrary exceptions to the ABC test, which the full Ninth Circuit Court of Appeals recently upheld.
If an exception applies, the company must still establish the worker satisfies a separate multi-factor test that primarily focuses on the extent of the company’s right to control the manner and means of work performance. The company must also satisfy other state and federal criteria, including the IRS factors and the federal Department of Labor’s Final Rule under the Fair Labor Standards Act.
Misclassification consequences can include liability for unpaid wages for up to four years including potential overtime and missed breaks; itemized wage statement violations up to $4,000 per worker; waiting time penalties; liability under California’s Private Attorneys General Act; and attorneys’ fees and court costs. Deliberately misclassifying workers can lead to additional penalties from $5,000 to $25,000 per violation.
Misclassification red flags:
Take-Aways:
Assume workers are employees unless they unequivocally meet all applicable standards, tests, and criteria for independent contractor status. Consult with a skilled management-side employment attorney to navigate through this process and resolve any potential “red flags.”
For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.See also:
Cindy Bamforth
June 14, 2024
An employee whose scheduled shift does not permit time outside of work to vote in a public election may take up to two paid hours off to do so. The employee must give two days’ advance notice and receive written supervisor approval.
An employee whose scheduled shift does not permit time outside of work to vote in a public election may take up to two paid hours off to do so. The employee must give two days’ advance notice and receive written supervisor approval.
To receive the pay for that time, the employee must also provide a receipt.
Unless employer and employee agree otherwise, voting time off may only be at the start or end of regular working hours, whichever causes the least time away while still allowing ample opportunity to make it to the polls.
Policy Drafting Tip:
Take-Aways:
Implement and regularly review your handbook to include all applicable leave policies, including voting leave, and educate and train your supervisors on these laws.
We publish this series to educate employers on best practices for a well-written handbook that assists applicants, employees, and management alike. To purchase our 2024 template handbook – which contains the above policy and much more – and accompanying forms or for more information, please contact Office Manager Aimee Rosales at 626.583.6600 or officemgr@tbowleslaw.com.
See also:
Helena Kobrin
June 7, 2024
The Los Angeles federal court has approved a settlement requiring several Southern California poultry processors to pay $221,919 in penalties and $4.8 million in back pay to 486 poultry workers.
The Los Angeles federal court has approved a settlement requiring several Southern California poultry processors to pay $221,919 in penalties and $4.8 million in back pay to 486 poultry workers. $1 million of the latter is profits earned off illegal child labor, as is $171,919 of the penalties.
The court also barred shipment of any such “contraband” poultry to customers including Foster Farms, pet food companies, and hotels in Nevada.
A U.S. Department of Labor investigation found children as young as 14 deboning poultry with sharp knives in violation of federal law, as well as unpaid overtime, falsification of records, threats to workers about talking to investigators, and supervisor retaliation. The processors also initially refused to respond to subpoenas or otherwise cooperate with the investigation.
Solicitor of Labor Seema Nanda said: “When we find an employer has put a child’s well-being at risk in return for profit, the Department of Labor will use all available tools to seek to remove children from harm’s way and prevent future violations, including stopping the shipment or sale of goods located where children are being exploited. The court’s disgorgement remedy recognizes that no employer should profit off the shipment of contraband and the backs of children.”
Take-Aways:
Employers must comply with all applicable state and federal employment laws, including those covering minors. They should engage skilled counsel and cooperate with investigations to avoid enhanced penalties. Large volume retail recipients of food products should also ensure they are buying from reputable suppliers that comply with labor laws, including those related to children.
For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
See also:
Helena Kobrin
May 31, 2024
With summer almost upon us, Cal/OSHA’s May 6, 2024, news release reminds employers to comply with heat illness prevention requirements .
With summer almost upon us, Cal/OSHA’s May 6, 2024, news release reminds employers to comply with heat illness prevention requirements.
Heat illness is a serious medical condition and includes heat cramps, heat exhaustion, dizziness, weakness, nausea, heat stroke, convulsions, fainting, or even death.
Cal/OSHA advises six protective measures for outside workers:
Cal/OSHA Acting Chief Debra Lee stated: “Employers with outdoor workers should not wait to review their procedures on preventing heat illness and they should ensure their training is effective as possible.”
Take-Aways:
Covered employers should comply with Cal/OSHA’s heat illness prevention regulations and guidelines and monitor forthcoming indoor heat illness prevention regulations.
For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
See also:
Cindy Bamforth
May 30, 2024
California employers of all sizes must provide protected leave to employees requiring time off to serve on juries or appear in court as a witness in compliance with a court order, subpoena, or other lawful means.
California employers of all sizes must provide protected leave to employees requiring time off to serve on juries or appear in court as a witness in compliance with a court order, subpoena, or other lawful means.
Exempt-from-overtime employees are entitled to receive their full weekly salary during such work absences if they perform any work in the same workweek.
Policy Drafting Tips:
Take-Aways:
Implement and regularly review your handbook to include all applicable jury and witness leave policies and educate and train your supervisors on these laws.
We publish this series to educate employers on best practices for a well-written handbook. To purchase our 2024 template handbook – which contains the above policy and much more – and accompanying forms or for additional information, please contact Office Manager Aimee Rosales at 626.583.6600 or officemgr@tbowleslaw.com.
See also:
Cindy Bamforth
May 24, 2024
The Federal Trade Commission (FTC) – empowered to protect the public from deceptive or unfair business practices – has issued a nationwide rule prohibiting employer noncompete agreements (Rule).
The Federal Trade Commission (FTC) – empowered to protect the public from deceptive or unfair business practices – has issued a nationwide rule prohibiting employer noncompete agreements (Rule).
The Rule outlaws any agreement prohibiting employees, senior executives included, from competing with their employers as unfair competition. Existing noncompete agreements with senior executives will remain enforceable. Any signed by other workers will not. “Senior executives,” less than one percent of workers, are company policy makers earning at least $151,164.
The FTC directs employers to use other methods, such as nondisclosure agreements and trade secret laws, to protect their proprietary information (e.g., client/customer/patient lists).
The Rule will be effective September 4, 2024. By that date, employers must notify non-senior executive workers their noncompetes are no longer valid. The FTC website will provide model notification language. California required employers to provide such notices in February 2024. See What’s New In 2024: Sacramento Love Letter: Mandatory Non-Compete Notices Due February 14, 2024 (February 8, 2024)
Like California law, the Rule does not prohibit a noncompete with someone selling all or a portion of a business.
While already under similar restrictions, California employers should note how differences in the Rule’s provisions may restrain them further.
Take-Aways:
Employers nationwide should prepare for the demise of noncompetes and the required notices to employees. They should also explore alternative protections for their confidential information, such as employee agreements for secure handling and non-disclosure of trade secrets.
For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
See also:
Helena Kobrin
May 17, 2024
The U.S. Supreme Court ruling in Muldrow v. St. Louis has opened employers to discrimination charges for “lateral transfers” (moves from one part of operations to another) even without significant harm to the employee.
The U.S. Supreme Court ruling in Muldrow v. St. Louis has opened employers to discrimination charges for “lateral transfers” (moves from one part of operations to another) even without significant harm to the employee.
A new head of the St. Louis Police Department’s Intelligence Division transferred a plainclothes female sergeant with an outstanding record and years of experience to a uniformed job supervising patrol officers so he could install a male replacement. The transferred officer lost no wages or rank. Nevertheless, she sued the City for sex discrimination under Title VII of the Civil Rights Act of 1964 (Title VII) because the new position took away the prestigious responsibilities, schedule, and perks of the prior position.
The trial court and Court of Appeals upheld her transfer, finding it did not produce a “materially significant disadvantage.” The U.S. Supreme Court disagreed. It ruled that Title VII has no requirement that an action affecting the terms and conditions of employment, taken for a prohibited reason, such as gender, have a “significant” effect. It therefore reversed the lower court rulings, giving employers a guide to what kind of transfers are discriminatory:
“The transfer must have left her worse off, but need not have left her significantly so. And [the sergeant’s] allegations, if properly preserved and supported, meet that test with room to spare. Recall her principal allegations. She was moved from a plainclothes job in a prestigious specialized division giving her substantial responsibility over priority investigations and frequent opportunity to work with police commanders. She was moved to a uniformed job supervising one district’s patrol officers, in which she was less involved in high-visibility matters and primarily performed administrative work. Her schedule became less regular, often requiring her to work weekends; and she lost her take-home car. If those allegations are proved, she was left worse off several times over. It does not matter, as the courts below thought . . . that her rank and pay remained the same, or that she still could advance to other jobs.”
This ruling is a caution to all employers to avoid transferring employees to a new position against their will if the employee will be “worse off.” They should apply the same consideration when re-assigning an employee returning from a protected leave, such as California’s Family Rights Act (CFRA) or the federal Family and Medical Leave Act (FMLA).
Take-Aways:
To avoid a charge of discrimination, employers should scrutinize any planned lateral transfers that an employee opposes to ensure the person will not be worse off.
For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
See also:
Helena Kobrin
May 10, 2024