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:

• Covered employers should include a policy permitting up to two hours voting leave on two days advance notice, compensable on the employee’s return of a receipt.

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:

• Military Leave Policy: Job Security for Up to Five Years (April 26, 2024)
• Reproductive Loss Leave (November 2, 2023)
• First Responder Job Security: Emergency Service Volunteer Leave Policies (October 23, 2023)

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. $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:

• Workplace Peace of Mind: “And How His Audit Stands, Who Knows, Save Heaven” (March 29, 2024)
• Protect the Kids: McDonald’s Franchisees Cited for Child Labor Violations (August 11, 2023)

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.

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:

• Plan – Have an effective written heat illness prevention plan, including emergency response procedures.
• Training – Train all employees and supervisors on health illness prevention.
• Water – Provide free, fresh, pure, suitably cool drinking water so each worker can drink at least one quart per hour and encourage workers to do so.
• Rest – Encourage cool-down rests in the shade for at least five minutes as needed to avoid overheating.
• Shade – Provide proper shade when temperatures exceed 80 degrees and permit workers to cool off in the shade at any time upon request.
• Observe – Closely observe all employees during a heat wave, especially those newly assigned to a high heat area, and provide lighter work, frequent breaks or shorter hours to help acclimate.

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:

• Mercury Management; Employers Must Protect Workers from Heat Illness (September 9, 2022)

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.

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:

• Authorize employees to take protected time off to serve on juries or appear in court as a witness;
• Require prompt notice of anticipated time off;
• Decide if the employee must submit a copy of the summons or subpoena;
• Specify if the employee is expected to return to work if released from court attendance earlier in the day;
• State whether and to what extent the company will voluntarily compensate its employees for such court attendances; and
• Confirm that exempt-from-overtime employees will be paid their full weekly salary in any week where they provide any work while also serving on a jury or as a witness.

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:

• Military Leave Policy Job Security for Up To Five Years (April 26, 2024)
• Reproductive Loss Leave (November 2, 2023)

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 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:

• Handbook Helper Episode 7: Mum’s The Word: Employee Confidentiality Policy (July 29, 2022)
• Competition Free-for-All: Most Non-Competes Are Unenforceable in California (July 23, 2021)
• The Annals of Intellectual Property Number 2: What is a Trade Secret? (February 18, 2015)

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.

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:

• 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)

Helena Kobrin
May 10, 2024

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:

• First Responder Job Security: Emergency Service Volunteer Leave Policies (October 23, 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