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)
• 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:

• 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:

• 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:

• 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-Aways:

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

Effective January 1, 2024, California minimum wage increased to $16 per hour for all employers, regardless of size.

As reflected in the chart below, some California municipalities have higher minimum wage rates.  Noted in the chart, some of those will increase their local minimum wage on July 1, 2024:

Employers must review and comply with the rules for any locality in which their employees work. The cities not reflected as changing minimum wage on July 1 make their changes on January 1 of each year. The UC Berkeley Center for Labor Research and Education publishes regular updates.

Covered employers must review the information for their location(s) and conspicuously post the current wage notice for each applicable jurisdiction, which can be downloaded through the links above.

Helena Kobrin
Daniska Coronado
June 28, 2024

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:

• Covered employers should implement a Crime Leave policy providing all required rights and protecting covered employees’ privacy and safety.

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:

• Handbook Helper Episode 42: Work Time Off for Voting (June 7, 2024)
• What’s New In 2024: Reproductive Loss Leave (November 2, 2023)
• First Responder Job Security: Emergency Service Volunteer Leave Policies (October 23, 2023)

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 violence incident logs; and keep records of incident investigations and hazard identification, evaluation and correction.

The law does not apply to:

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

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:

• 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.

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:

• Workplace Violence Prevention Plans July 1, 2024- Implementation Deadline, Resources Available (March 22, 2024)

• Cautionary Tale Episode 70 - Keep Employees Safe (June 30, 2023)

Cindy Bamforth
June 20, 2024

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:

• No written independent contractor agreements;
• Out-of-date agreements;
• Incorrectly analyzing the ABC test and its exceptions;
• Paying someone on 1099 basis upon request or to avoid payroll taxes;
• Hiring freelancers who have – or claim to have -- other full-time jobs;
• Hiring freelancers to work on an exclusive or full-time basis;
• Hiring freelancers whose main area of expertise is in a different field;
• Rehiring former employees as independent contractors for the same job;
• Having freelancers perform central functions;
• Paying freelancers by the hour;
• Paying freelancers via direct deposit;
• Not requiring invoices;
• Providing “benefits” such as paid vacation and expense reimbursements; and
• Regulating the worker’s schedule and supervising performance against employees on payroll.

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:

• Add Them to the Pile – Yet More Federal Criteria for Independent Contractors (April 15, 2024)
• We Offer an Ounce of Prevention – Make a Wage Audit a Priority (February 15, 2024)
• Department of Labor $5.6 Million Judgment for Drivers Miscast as Independent Contractors – Feds Fed Up with Trucker Misclassification (February 3, 2023)

Cindy Bamforth
June 14, 2024