The California Civil Rights Department (CRD) has obtained a $51,000 settlement from Octapharma Plasma for allegedly rescinding a job offer based on criminal history without considering significant mitigating factors and evidence of rehabilitation.

Under the Fair Chance Act, a covered employer may not consider criminal history information until after it extends a conditional job offer. Job applications and advertisements must not include criminal history inquiries or rule out persons with criminal histories. For example, blanket statements such as “must have clean record” violate the law’s protection. Upon learning of a potentially disqualifying criminal record post-offer, the employer must allow the applicant to explain mitigating circumstances, such as the date and type of offense and whether it has any direct, adverse relationship to the job position.

CRD Director Kevin Kish stated: “The Fair Chance Act is about giving every Californian an opportunity to succeed. The law helps qualified candidates to retake control of their lives, give back to their communities, and reintegrate into society. Through this settlement, Octapharma Plasma is doing the right thing for its workers and for the people of our state.”

Octapharma Plasma has also agreed to modify its hiring policies, train hiring managers on the Fair Chance Act’s requirements, and report detailed information to CRD for three years whenever revoking or denying an applicant’s conditional offer due to the individual’s criminal history.

Take-Aways:

Covered employers need to correctly implement the Fair Chance Act’s requirements into their hiring practices.

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)
• Pay Disparity: Gender Gaps Persist in Every Industry, Reporting Due May 8, 2024 (April 18, 2024)
• Give Peeps A Chance: Civil Rights Department Sues Ralphs for Violating Fair Chance Act (January 26, 2024)

Cindy Bamforth
May 9, 2024

California and federal law direct employers of any size to provide leave to a worker called up to the reserves or National Guard and to hire the person back for up to five years of such ensuing service.

An employee must request such leave on receiving orders to report for duty, submitting the orders as support. Such leaves are generally unpaid, and employees will not accrue vacation, insurance, and other benefits while on military leave, unless applicable law so requires.

Policy Drafting Tip:

• Covered employers should include a military leave policy that requires adequate documentation, states what happens with benefits while on leave, and confirms the employee’s reinstatement rights.

Take-Aways:

Implement and regularly review your handbook to include all applicable military 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 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 additional information, please contact Office Manager Aimee Rosales at 626.583.6600 or officemgr@tbowleslaw.com.

See also:

• Work Easier – Workplace Policy and Handbook & Forms for 2024 (April 25, 2024)
• First Responder Job Security: Emergency Service Volunteer Leave Policies (October 23, 2023)
• Attendance and Absence Policy – Show Up Standards (June 22, 2023)

Helena Kobrin
April 26, 2024

Under California law, every business with 100 or more employees and/or 100 or more people hired through labor contractors – and with at least one in California -- must annually report to the Civil Rights Department (CRD) detailed worker data including job category, sex, race/ethnicity, pay and hours worked (the pay data report). This year’s filing deadline is May 8, 2024).

On March 12, 2024, the CRD released prior report findings showing gender pay gaps in every major industry, particularly for women of color. For example:

• Women typically make an estimated 81 cents for every dollar men earn;
• Women earn less than men in every reported industry, including finance, construction, and trade;
• In the finance sector alone, women receive an estimated $10.3 billion less pay than men each year; and
• The smallest pay gaps are found in lower paid jobs such as service work and administrative support.

CRD Director Kevin Kish stated: “Pay discrimination is real, it is persistent, and it happens right here in California. The new few findings we’re sharing today make it clear that there is a long road ahead of us for true pay equity in our state. Whether it’s through clearly identifying the challenge, taking direct legal action, or encouraging employers to step up the plate, it’s going to take all of us working together to make a difference.”

Take-Aways:

All employers should routinely assess job advertising, interviewing, pay scales and other hiring and retention practices to prevent or correct unlawful pay disparities and ensure equal employment under applicable federal and state laws including California’s Fair Pay Act and Fair Employment and Housing Act (FEHA).

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

See also:

• Freedom Between the Lines – Workplace Policy Handbook & Forms for 2024 (March 15, 2024)
• Payroll Data Reporting – May 8, 2024 Deadline for Companies with 100 + on Payroll (March 15, 2024)
• 72 Million Reasons Not to Mess with Women, Employer Agrees to End Widespread Sex Discrimination (February 16, 2024)
• Pay Fair – California Fair Pay Act Mandates Equal Pay Based on Sex, Race or Ethnicity (August 20, 2021)

Cindy Bamforth
April 18, 2024

BaronHR, LLC, a national staffing agency, will pay $2.2 million to settle claims it discriminated against low-wage, low-skill job applicants on the basis of race, gender, and disability in violation of Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act.

While Baron has also agreed to change its employment policies and practices to prevent future discrimination, its imminent shut down moots that pledge unless the company resumes business.

Los Angeles regional EEOC attorney Anna Park stated: “Hiring discrimination remains a persistent problem in low-skill, low-wage industries. Employers need to take their responsibilities seriously to ensure all applicants receive employment opportunities regardless of race, national origin, sex, or disability.”

Take-Aways:

Staffing companies can provide temporary workers as well as payroll and HR functions such as screening and onboarding. Yet, labor claims against an agency expose the businesses utilizing its workers to liability as joint employers. The BaronHR example underscores the importance of due diligence in choosing such a provider.

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

See also:

• 72 Million Reasons Not to Mess With Women: Employer Agrees to End Widespread Sex Discrimination (February 16, 2024)
• Workplace Discriminators, Expanded: Third-Party Service Companies May Be Liable as “Employers” (August 25, 2023)
• EEOC Obtains $2 Million Settlement with McDonald’s Franchisees for Tolerating Sexual Harassment (February 23, 2023)

Helena Kobrin
April 12, 2024

The California Labor Commissioner’s Office has obtained a $2 million settlement from Fresno-based restaurant Pearl B-Star, Inc. dba Lin’s Fusion for wages allegedly owed to 32 restaurant employees.

The commissioner’s Bureau of Field Enforcement (BOFE) found that workers, many of them immigrants, received wages in cash and were not compensated for overtime, split shifts, meal periods, and contract wages.

The Employment Development Department (EDD) and the Joint Enforcement Strike Force (JESF) also participated in the investigation.

Labor Commissioner Lilia Garcia-Brower stated: “When enforcement agencies work together, we are best able to protect workers. In this case systemic violations were detected, the perpetrating employer was held accountable, and workers are receiving owed wages. We look forward to continuing to collaborate on many cases to protect workers and law-abiding employers.”

Take-Aways:

It is vital to comply with all applicable wage-related laws regardless of immigration status. Our firm can conduct friendly reviews of company wage, hour and documentation practices before any government agency comes knocking with real or imagined employee grievances and millions in potential damages.

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

See also:

• Freedom Between the Lines, Workplace Policy Handbook & Forms for 2024 (March 15, 2024)
• California Invests $18 Million to Prosecute Wage Theft (March 8, 2024)
• We Offer an Ounce of Prevention, Make a Wage Audit a Priority (February 15, 2024)

Cindy Bamforth
April 10, 2024

Under the January 1, 2024 version of California’s employer-provided paid sick leave Healthy Workplaces, Healthy Families Act of 2014 (Act), employers may opt to provide the benefit either in an up-front lump sum for eligible employees to use during the 12-month eligibility year (the “advance method”) or via accrual over time (the “accrual method”).

Under the accrual method, the updated Act requires employers to either have eligible employees accrue one hour of paid sick leave for every 30 hours worked (the “1:30 statutory accrual method”) or use another regularly recurring accrual method, such as per pay period, so long as employees accrue at least 24 hours by the 120^th day of the 12-month period and no less than 40 hours by the 200^th calendar day (the “optional accrual method”).

Until recently, employers were uncertain whether they were permitted to follow the 1:30 accrual for part-time employees who did not accrue at least 24 hours by their 120^th day of employment or 40 hours by their 200^th day.

The Labor Commissioner’s recently-updated FAQs resolve this ambiguity.

FAQ No. 12 clarifies:

“Although employers may adopt or keep other types of accrual schedules (other than 1:30), the schedule must result in an employee having at least 24 hours of accrued sick leave or paid time off by the 120th calendar day of employment and 40 hours by the 200th calendar day of employment. If an employer is using the 1 hour of paid sick leave accrued for 30 hours worked or something more generous (e.g. 1 hour accrued of paid sick leave for every 20 hours worked), then the employer does not have to provide 24 hours or 3 days by the 120th day of the year and 40 hours or 5 days by the 200th day.” (emphasis added)

Take-Aways:

California employers using the accrual method should use the 1:30 accrual rate for their part-time employees. Otherwise, part-timers must accrue at least 24 hours by their 120th day of employment or 40 hours by their 200th day.

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

See also:

• Freedom Between the Lines – Workplace Policy Handbook & Forms for 2024 (March 15, 2024)
• We Offer an Ounce of Prevention; Make a Wage Audit a Priority (February 15, 2024)
• Expanded Paid Sick Leave Requirements; California Employers Must Now Provide 40 Hours or Five Days of Sick Pay (October 11, 2023)

Cindy Bamforth
March 29, 2024

We, however, suggest management not leave it to the gods (understatement). Prevention being nine-tenths of the law, if not more, best practice is a regular, thorough audit of company wage, hour and documentation practices before any class action attorney comes knocking with real or imagined employee grievances and millions in potential damages.

Having represented our fair share of businesses that had to confront – and pay many thousands to defend -- their workplace practices in a lawsuit, our lawyers bring a practiced eye for review of wage and hour policies and protocols for compliance with California’s unforgiving labor laws.

Contact Office Manager, Aimee Rosales, for more information and to set an appointment. Phone: 626.583.6600, email: officemanager@tbowleslaw.com.

See also:

• Freedom Between the Lines, Workplace Policy Handbook & Forms for 2024 (March 15, 2024)
• We Offer an Ounce of Prevention, Make a Wage Audit a Priority (February 15, 2024)

• PAGA Monster Grows More Legs, Best Protection Against Potentially Devastating Group Labor Claims is…Prevention (February 2, 2024)

March 29, 2024

As previously reported, effective July 1, 2024, most California employers must implement and maintain an effective workplace violence prevention plan (the Plan); training materials; and a violence incident log.

The law does not apply to:

• employees teleworking from a location of their choosing and control
• health care facilities covered under Cal/OSHA’s Violence Prevention in Health Care regulation
• law enforcement agencies; correctional facilities; and
• locations not accessible to the public where less than 10 employees work at any given time

To assist covered employers, the California Division of Occupational Safety and Health (Cal/OSHA) has released a model workplace violence prevention plan.
That model plan addresses the key topics:

• Emergency response procedures;
• Violence prevention, detection, evaluation and correction;
• Incident reporting procedures and post-incident response and investigation;
• Training and instruction; and
• Recordkeeping and violence incident log.

Cal/OSHA has issued an employer fact sheet regarding mandatory plans, violent incident logs, effective training programs, and recordkeeping requirements.

That agency has also published several other workplace violence prevention guidelines and fact sheets, including for agricultural operations.

Take-Aways:

Covered employers must adopt a legally complaint, comprehensive workplace violence prevention plan before the July 1 deadline.

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

See also:

• Workplace Violence Prevention Plan – California Employers Must Implement Comprehensive Violence Prevention Plans and Training by July1, 2024 (November 17, 2023)
• Keep Employees Safe – Workplace Murders are Cal/OSHA Violations (June 30, 2023)
• Construction Accidents Kill Two with Resulting Large Fines against the Employers (December 28, 2018)

Cindy Bamforth
March 22, 2024

[Note: previously published about a year back; annual repetition is likely not enough.]

After complimenting our preparations in a recent trial, the thus-appreciated judge then declined my pitch to place his views on our firm’s Yelp page. Nice try counsel.

A Berkeley hippie from the 60s, I went off to 70s law school determined to use eventual skill and position to beat back injustice somewhere. My class recently commemorated 45 years out in the world. Snap your fingers: boom, 45 years man.

Back when wetter behind the ears, I had a vague vision of political futures, standing before multitudes, telling it like it is, admired or at least respected by all.

Rather, by turns and circumstance, I landed in the courts, beginning as the proverbial spear carrier, second or third “chair” as we say. My mentor, the near-peerless Earle Cooley of Boston, put my supporting role succinctly: “today you stay seated and shut up, eyes forward in a gaze of strategic cunning.”

I have since had a more-than-fair share of lead work, our firm largely defending employers in the soup, also known as California civil litigation. The deal:

• If you are an owner or manager facing a former employee’s threatened or filed suit, our condolences. If it’s any consolation, you are not alone. By rough count, we see as many as 100 such cases initiated in L.A. County every week. We welcome you to a whole new universe, the legal one;

• Law practice is not a science; it is an art;

• A lawsuit is not a replay of what actually occurred between the contending parties, it is a reenactment contest with respective lawyers the directors;

• While attorney duty is to represent the client “zealously within the bounds of the law,” zeal is civilly managed passion and diligence, not unhinged, ridiculing rage. We “do” litigation surgically, not with flamethrowers. There is a time to fight like hell, but that cannot be an end in itself;

• Accordingly, it’s a rare employment case that has any business making it to trial; if it got that far, it’s likely a case that’s been mismanaged by either or both sides;

• The practical pressures on the contenders can and should commonly lead to settlement if: a) the lawyers do their work thoroughly and, vis-à-vis each other, with relative honesty; b) each lawyer can thus constructively educate all concerned: own client, opposing counsel, opposing party, possible mediator; and c) both sides can with relative rationality evaluate the good sense of resolving the matter and moving on;

• While litigation is not a little like dentistry without the Novocain, employers must consider the spent resources as an investment. A resolved suit is a lesson demanding greater awareness and better protocols to head-off trouble next time before it goes full-Perry Mason; and

• … and finally, lawyers are not management, we are advocates (fancy word for salespeople). Our clients are the decisionmakers; we can do no more than provide our best possible guidance.

45 years of this and counting? Making a living by such contention is an acquired taste to be sure, only navigated by some attempted informality on occasion. Still looking for that first judge-authored Yelp review, hopefully not too ungenerous.

And so, we work.

Tim Bowles
March 22, 2024