[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

Last year we wrote about new California Civil Rights Department (CRD) annual reporting requirements for larger employers, breaking down annual pay and hours-worked data by job category, sex, race, and ethnicity. See What's New In 2023:Reporting Payroll Profiles: Deadline is May 10, 2023 (April 6, 2023). The next required report is due on May 8, 2024.

Businesses with 100 or more employees (defined to include labor contractors), with at least one in California, must file annually with the CRD in addition to any required "EEO-1" report with the federal Equal Employment Opportunity Commission. For each employee, the state's report must include 2023 work location (including remote), job category, sex, race/ethnicity, pay and hours worked.

The CRD has good online resources, including links to forms, a reporting portal and more, as well as an FAQ page with considerable information on the requirements.

Employers should use the current form, not any old one, and file by the deadline. The CRD is going after companies that do not file. See, Civil Rights Department Secures Nearly $100K Settlement to Resolve Cambrian Homecare, Inc. Pay Data Lawsuit.

Take-Aways:

If a company employs 100 or more employees/labor contractors, even if only one is in California, it must file its payroll data report with the CRD by May 8, 2024.

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)
• We Offer an Ounce of Prevention, Make a Wage Audit a Priority (February 15, 2024)
• New Year, New Leaf, Workplace Policy Handbook and Forms for 2024 (January 5, 2024)

Helena Kobrin
March 15, 2024

Businesses must protect their service and product brands from those who may seek, intentionally or unknowingly, to trade on the goodwill of those brands.

Choosing and registering a strong trademark is a powerful protective action. As a shield against unauthorized use, a registered mark is among the most valuable assets of an enterprise.

Not all chosen trademarks can be registered. Some marks are too generic or descriptive of products or services, diminishing the owner's ability to prevent others from using them. A trademark attorney can help choose a mark the US Patent and Trademark Office (USPTO) is likely to accept for registration.

Once a business succeeds in registering a mark, it must maintain that mark with required filings every few years.

Our firm is available to aid in every aspect of this process.

Take-Aways:

Use a trademark attorney to choose, register and maintain a strong trademark with the proper, timely USPTO filings.

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

See also:

• The Annals of Trademark Number 3: Selecting a Trademark Part 2 Distinctiveness (November 4, 2014)
• The Annals of Trademark Number 2: Selecting a Mark Part 1 (October 24, 2014)
• The Annals of Trademark Number 1: What is a Trademark? (October 16, 2014)

Helena Kobrin
March 8, 2024

California Penal Code section 487m criminalizes intentional Labor Code violations - such as failing to timely pay all required wages (e.g., minimum wage, overtime, premium pay for missed breaks), requiring off-the-clock work, or taking workers' tips -- as felony grand theft if the underpaid wages exceed $950. For this section, "employee" includes an independent contractor and "employer" includes the hiring entity of an independent contractor. Conviction can result in a jail sentence of up to three years.

On February 16, 2024, the California Department of Industrial Relations (DIR) launched an $18 million Workers' Rights Enforcement Grant Program (the Grant Program) for local prosecutors to aggressively pursue employers who violate labor laws.

Labor Commissioner Lilia Garcia-Brower stated: "We appreciate the legislature's support in creating this funding source to incentivize the prosecution of wage theft. This is a serious and persistent problem, which demands increased collaboration with government agencies and community leaders. This grant program will help further our efforts to combat wage theft and unfair competition in the workplace. We look forward to working with local prosecutors in addressing these important issues."

Take-Aways:

The Grant Program underscores the importance for all California employers to know and apply proper pay practices. Our firm can help with friendly, confidential wage audits, ranging from a small targeted sampling of pay records to extensive review of workplace wage-and-hour practices.

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

See also:

• We Offer an Ounce of Prevention; Make Wage Audit a Priority (February 15, 2024)
• $5.5M To Settle Wage Theft Claim -- Elderly Care Provider Fought Underpayment Citation for Five Years (January 5, 2024)
• PAGA Monster Grows More Legs - Best Protection Against Potentially Devastating Group Labor Claim is ...Prevention (February 2, 2024)

Cindy Bamforth
March 8, 2024

To address the shortage of health care workers, Senate Bill 525 (SB 525) created Labor Code sections 1182.14 and 1182.15. Effective June 1, 2024, the new laws provide substantial minimum wage increases for health care workers in facilities ranging from tiny residential care facilities for the elderly (RCFEs) to hospital systems with more than 10,000 workers. Eventually raising all non-exempt health care workers to $25/hour, the rate of increase varies depending on type and size of health care provider. The new laws supersede local minimum wage laws.

"Covered health care facility" includes not only employees of large acute care hospitals and facilities in integrated health care systems, licensed skilled nursing facilities, various kinds of clinics, including dialysis, specialty clinics affiliated with schools for teaching purposes, medical research and education facilities, and urgent care clinics, but also physician groups with 25 or more physicians, licensed RCFEs, licensed home health agencies, and even county correctional institutions and patients' homes where health care services are delivered by entities owned by acute care or psychiatric hospitals.

Employees who provide patient care, health care services and health care supporting services, are covered. Supporting services include positions such as housekeeping, janitors, clerical and nonmanagerial administrative workers, guards, gift shop personnel, food service workers, groundskeepers, warehouse and laundry workers.

The new laws also cover contractor employees and subcontractors who perform or support health care services primarily on the premises of a health care facility.

Under section 1182.14, the pay categories and rates for covered facilities are quite detailed:

1. The default minimum wage for health care workers, unless otherwise specified in the statute is: $21/hour from June 1, 2024 to May 31, 2026; $23/hour from June 1, 2026 to May 31, 2028; and $25/hour as of June 1, 2028.

1. For large health care facility or integrated health care delivery systems, employers with 10,000 or more full-time equivalent employees, those in counties with 5 million or more population, and certain dialysis clinics and their owners and operators, wages increase to $23/hour on June 1, 2024; $24/hour on June 1, 2025, and $25/hour on June 1, 2026.

1. For hospitals and independent hospitals with a high or elevated governmental payor mix, e.g., Medicare and Medicaid, rural independent health care facilities, and health care facilities owned, operated or affiliated with counties with population under 250,000, the rate is $18/hour as of June 1, 2023, with annual 3.5% increases, and $25/hour as of June 1, 2033.

1. For health care workers at an integrated health care delivery system, certain licensed general acute care hospitals, or distinct sections of such hospitals, and special hospitals, as well as certain clinics, community clinics, rural health care clinics, and urgent care clinics, the rates are: $21/hour from June 1, 2024 to May 31, 2026; $22/hour from June 1, 2026 to May 31, 2027; and $25/hour as of June 1, 2027.

The law tasks the Department of Industrial Relations (DIR) with developing a waiver program by March 1, 2024. Under the program, a covered health care facility can apply for an alternate phase-in or temporary pause of the new wage requirements if it can show through documentary evidence that complying with the new wages "would raise doubts about [the facility's] ability to continue as a going concern under generally accepted accounting principles."

Section 1182.15 requires licensed skilled nursing facilities to increase health care worker wages to $21/hour n June 1, 2024, $23/hour on June 1, 2026, and $25/hour on June 1, 2028. However, section 1182.15 only goes into effect when a patient care minimum spending requirement applicable to skilled nursing facilities is required.

For salaried health care workers to be exempt from overtime, health care facilities must pay them a monthly salary equivalent to at least 200 percent of the state minimum wage or 150 percent of the health care worker minimum wage.

Take-Aways:

Employers in the health care industries need to ascertain whether they are covered by the new laws and plan how to comply starting June 1, 2024. Facilities seeking a waiver should watch for the DIR's imminent issuance of FAQs and forms.

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

See also:

• 5.5M To Settle Wage Theft Claim, Elderly Care Provider Fought Underpayment Citations for Five Years (January 5, 2024)
• California Minimum Wage Rates Increases (December 20, 2023)
• Physicians and Surgeons Overtime Exemption Rates (November 21, 2023)

Helena Kobrin
February 23, 2024

Activision Blizzard, Inc. and related companies were targeted in 2018 with joint investigations by the California Civil Rights Department and the Equal Employment Opportunity Commission.

The CRD's resulting 2021 lawsuit claimed Activision's systemic discrimination against women through unequal pay, constructive discharge, retaliation, promotions, instances of inappropriate or offensive conduct, and failing to prevent such sex-based inequality. The company has now entered a consent decree, subject to court approval, to settle the case for $54 million and other commitments including recruitment practices to include underrepresented groups and changes to hiring, compensation, promotion and other practices. See FAQ.

All Activision women employees from October 12, 2015 to December 3, 2020 will receive a standard minimum payment, and some, depending on longevity, will receive more.

Also in 2021, Activision entered a consent decree with the EEOC to settle federal court claims for sexual harassment, pregnancy discrimination, and related retaliation. The terms included $18 million compensation for women targeted, Activision's correction of personnel records containing negative references and provision of future career opportunities and fair references.

Both consent decrees require the Activision companies to comply with applicable laws in their policies and practices, provide appropriate training, and handle complaints timely and effectively.
Take-Aways: Discrimination is a real issue. Employers must understand what constitutes illegal conduct and steer clear in all employment practices, including hiring, termination, promotion, pay, and overall treatment of employees. We offer Sexual Harassment Prevention Training seminars, virtual and in-person. Contact Aimee Rosales at officemanager@tbowles.com for more information.

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

See also:

• Find Out What's New In 2024: Last Chance Annual Seminar for Employers February 23, 2024 (February 7, 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)

Helena Kobrin
February 16, 2024

California employers can be in for a rude awakening on discovery they are not fully compliant with the Labor Code. Devastating results can occur when not-so-friendly state or federal investigators come knocking.

Worse are the employee-driven wage and hour lawsuits that can force a business to shut its doors. See, 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 penalties under California's 2004 Private Attorneys General Act (PAGA).

Given the high stakes, best practices demand an internal proactive wage audit to locate and fix improper pay practices before any government agency or workers' attorney points a finger in hostility.

Common topics:

• 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 PTO pay;
• Meal and rest break practices;
• Fair Pay Act compensation for similar job duties;
• Interns and volunteers; and
• Remote worker compensation.

Utilizing qualified outside counsel:

● provides an objective perspective;
● brings a seasoned eye from having seen too many worst-case scenarios; and
● findings are confidential by the attorney-client relationship.

Take-Aways:

Our firm is equipped to conduct friendly wage audits, ranging from a small targeted sampling of pay records to a thorough inspection of multiple wage-and-hour matters. E-letter subscribers will soon receive a link to register for a free 30-minute webinar next month to further explore the risks and options.

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

See also:

• Friday, February 23, 2024 Annual Seminar for Employers Covering Employment Legal Essentials and New Workplace Laws (February 7, 2024)
• $5.5M To Settle Wage Theft Claim -- Elderly Care Provider Fought Underpayment Citation for Five Years (January 5, 2024)
• PAGA Monster Quelled ... For Now - Appeals Court Overturns Wal- Mart's $102 Million Penalty and Damages Judgment (July 2, 2021)

Cindy Bamforth
February 15, 2024

As previously covered, California has tightened the noose on noncompete clauses that could restrain employees from engaging in lawful professions, trades, or businesses.

A new law, AB 1076, adds Business and Professions Code section 16600.1, requiring employers with in-state or California-based employees by February 14, 2024:

• To determine if any signed employment agreements, offer letters, confidentiality agreements or severance agreements contain an impermissible noncompete clause, even if the agreement was originally signed outside of California;
• If so, to individually notify all California-based current and former employees who were on payroll at any time after January 1, 2022, that the non-compete is void; and
• To deliver the written notice to each affected employee's last known mailing address and email address.

Failure to comply with the February 14 deadline constitutes a violation of California's Unfair Competition Law, which may carry civil penalties.

Take-Aways:

Affected employers must comply with AB 1076's February 14, 2024 deadline; ensure current and future employment contracts do not contain unenforceable noncompete provisions; and refrain from enforcing an unlawful noncompete provision.

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

See also:

• Last Chance - Annual Seminar for Employers Friday, February 23, 2024 Covering Employment Essentials and New Workplace Laws (February 7, 2024)
• New Year, New Leaf - Workplace Policy Handbook & Forms for 2024 (January 5, 2024)
• Competition Free-For-All: Most Non-Competes Are Unenforceable in California (July 23, 2021)

Cindy Bamforth
February 8, 2024

While there have been a few employer-favored developments, claims under California's 2004 Private Attorneys General Act (PAGA) continue to rise, permitting a single worker to seek Labor Code penalties on behalf of a company's entire payroll. Facing potentially crushing liabilities or without the resources to fight bogus accusations, many employers seek to promptly settle such claims, further encouraging PAGA lawyers to find other targets.

A recently encountered example: a building contractor, to its credit, had for years ensured its field workers accurately clocked out and back in for their mandated meal periods. Yet, facing a seemingly innocuous PAGA accusation that the company deprived its crews of their "lunch rights," those records yielded an irregular pattern of meals potentially in Labor Code violation. The prospective impact of this single accusation? 30 workers, average 1.5 violations per week, $100/first violation and $200/further violation per worker per one-week pay period over minimum 12 months = $468,000.

The Supreme Court continues to confirm the unforgiving nature of this law. In Estrada v Royalty Carpet Mills (January 18, 2024), the Court invalidated a 2021 lower appeals court ruling that employers could nuke PAGA claims for their unmanageability. See, All Is Not Lost - Employers Protected from Out- of- Control PAGA Claims (September 17, 2021).

Management-side law firms have responded with helpful insights on how employers can still tactically deal with such law suits. See, e.g., Estrada v. Royalty Carpet Mills Largely Curtails Manageability Defense in California PAGA Cases (January 19, 2024); and The California Supreme Court Pulls the Carpet Out from Underneath Employers (January 18, 2024).

We aim to similarly assist our clients ensnared in such litigation. However, very few California employers have the resources necessary to make such moves, particularly all the way to a trial.

The Estrada decision once again confirms PAGA is here to stay. It takes but one ex-worker - perhaps rightfully disgruntled, perhaps not - and a seasoned plaintiff's lawyer to crank-up a suit. PAGA requires no permission from any co-worker and no co-worker can opt out. The defendant employer in Estrada case had left California in 2017 for the high cost of doing business here and, with the case now headed back to the trial judge, still faces liability under this law.

Take-Aways:

By far the best PAGA defense is to never present or perpetuate the grounds to invite one. With the aid of experienced employment lawyers, thoroughly and regularly audit all relevant workplace pay policy and practices. Promptly correct all irregularities found. Spotless - or, at least, near spotless -- records and protocols are a powerful deterrent and the most effective response if, heaven forbid, PAGA comes knocking from the depths.

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

See also:

• Friday, February 23, 2024 Annual Seminar for Employers Covering Employment Legal Essentials and New Workplace Laws
• PAGA Monster Quelled ... For Now - Appeals Court Overturns Wal- Mart's $102 Million Penalty and Damages Judgment (July 2, 2021)
• Please: Document Workplace Meal Breaks - Require Employees to Clock Out and Back In on Their Meals (June 4, 2021)
• The PAGA Monster Is Hungry - Non-Compliant California Employers at High Risk under Special Law (May 14, 2021)

Tim Bowles
February 2, 2024