The Equal Opportunity Employment Commission (EEOC) is issuing a series of guidances, each an extensive manual on addressing a particular workplace disability. The latest is Visual Disabilities in the Workplace and the Americans with Disabilities Act.

The publication explains employer duties to seek reasonable accommodations for disabilities and the EEOC's function to enforce the ADA. It also focuses on vision impairments in a Q&A format, including:

• the different types of disability; and
• what would and would not be a disability, e.g., vision corrected to normal by glasses and contact lenses is not.

The guidance contains sections on:

• Obtaining, using, and disclosing medical information, including actions an employer can take pre-employment offer, post-employment offer, and during employment;
• Keeping medical information confidential;
• Extensive information on accommodating applicants and employees, including various electronic tools that assist the visually impaired; potential need for policy, testing, and training modifications; work area adjustments; and sighted assistance and services;
• Safety concerns;
• Harassment; and
• Retaliation and interference.

The guidance offers extensive examples throughout. For instance:

An employer routinely posts job openings on an employee break room bulletin board, where employees are encouraged to share information. Daryon, an employee with blurriness and blind spots in his vision, requests electronic notice of all the postings via email so that he will have timely notice of the postings. The employer must provide electronic notice or another effective accommodation that would not result in undue hardship.

Take-Aways:

This EEOC guidance is an excellent tool for employers to address issues related to visually impaired applicants or employees. Employers should take advantage of all the EEOC guidances for correctly handling specific disabilities in hiring, employing, and terminating disabled workers.

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

See also:

• Disability Leave Policy - Accommodation Dispensation (August 25, 2023)
• Take Heed: Responding to Harassment and Discrimination Complaints Correctly (July 28, 2023)
• Workplace Artificial Intelligence EEOC Goes Old School - Date In, Equal Opportunity Out (May 26, 2023)

Helena Kobrin
September 8, 2023

Civil rights laws protect employees from discrimination based on various classifications, including religion. Employers must provide religious accommodations unless doing so would create an "undue hardship." Such accommodation could include such things as time off for religious observance, not working on the particular sabbath, or exceptions to dress requirements.

Since a 1977 Supreme Court opinion, federal courts have interpreted company undue hardship as only more than a "de minimis" effect -- "very small or trifling" - on its cost of operations, enabling employers to deny religious needs of employees for ultimately inconsequential financial impact.

The U.S. Supreme Court has now set a much higher bar to justify denial of accommodation requests. In Groff v. DeJoy, the employer had denied a postal worker's religiously based requests not to work Sundays. Disapproving the "de minimis" standard, the Court found undue hardship requires showing a religious accommodation would be a substantial burden "in the overall context of an employer's business," meaning "the burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business."

An employer thus must consider factors such as the "nature, size, and operating cost" of its business in making religious accommodation decisions. The test requires a practical, common-sense review of the facts. The effect of an accommodation on other workers is relevant only if it has actual ramifications for the employer's business. The Court reiterated that "employee animosity to a particular religion, to religion in general, or to the very notion of accommodating religious practice" cannot create "undue" hardship. Other possible options must also be considered before an accommodation can be considered "undue."

Take Aways:

An employer must take religious accommodation requests seriously and analyze the facts to determine if - in the context of its business - there would be substantial increased costs. If not, then the accommodation must be granted. What is substantial for a two-employee retail store will be drastically less than the same analysis for Target or Walmart.

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

See also:

• On the Hook, New Look -- Workplace Discriminators, Expanded Third-Party Service Companies May Be Liable as "Employers" (August 25, 2023)
• Wavelength Management -- Workplace Policy Handbook & Forms for 2023 - Grow the Flow (August 15, 2023)
• Preventing Workplace Discrimination: Accommodating Disabilities, Made Simple - New Guidelines Package Available for California Employers (August 24, 2017)

Helena Kobrin
September 1, 2023

California employers with 15 or more on payroll must provide eligible employees with up to 30 business days of paid leave -- and an additional 30 business days of unpaid leave -- for organ donation and up to five business days of paid leave for bone marrow donation. The law permits employers to require organ donors to take up to two weeks of accrued paid sick, vacation or PTO time and bone marrow donors to take up to five days of accrued paid sick, vacation or PTO time.

Covered employers should include this policy in their employee handbook.

Policy Drafting Tips:

• Specify the extent of permissible paid and unpaid donation leave;
• State the one-year period is 12 consecutive months from the date the leave begins, not per calendar year;
• Determine whether to require written medical documentation of the need for donation leave;
• Require the use of accrued vacation or sick benefits to the extent permissible under appliable law;
• State the leave is not a break in service and such employees will be treated as though they had remained at work;
• Confirm group health plan coverage will continue for the duration of the leave;
• Specify such leave is not counted as CFRA or FMLA leave; and
• Reassure employees they will not be retaliated or otherwise discriminated against for taking donor leave.

Take-Aways:

Implement and regularly review your handbook to include an organ and bone marrow donor policy, 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 2023 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:

• Disability Leave Policy - Accommodation Dispensation (August 25, 2023)
• Family and Medical Leaves Policy (July 20, 2023)
• Attendance and Absence Policy - Show Up Standards (June 22, 2023)

Cindy Bamforth
August 31, 2023

For companies with five or more on payroll, California's Fair Employment and Housing Act (FEHA) protects workers from employer discrimination based on protected classifications such as race, religion, gender, and disability.

In Raines v. U.S. Healthworks Medical Group (August 21, 2023), the California Supreme Court has broadened "employer" to include certain "business-entity agents" servicing companies on employment-related matters such as pre-hiring or for-promotion screening, testing or background checks. The expansion likely reaches all major, nationwide firms offering artificial intelligence systems to assist employers in such applicant or employee evaluations. See, Workplace Artificial Intelligence, EEOC Goes Old School; Data In, Equal Opportunity Out (May 26, 2023)

Christina Raines applied for and received a conditional offer as a food service aide from Front Porch Communities and Services. To complete hiring, Front Porch required her to pass a medical screening conducted by third-party and nationwide vendor U.S. Healthworks Medical Group (USHW). Ms. Raines claimed USHW "required job applicants to complete a written health history questionnaire that included numerous health-related questions having no bearing on the applicant's ability to perform job-related functions," including for example "venereal disease... problems with menstrual periods ... penile discharge, prostate problems ... or ... a history of tobacco or alcohol use." The questionnaire also asked whether the "job applicant was pregnant, sought information regarding medications taken, and required the job applicant to disclose prior job-related injuries and illnesses."

Ms. Raines's class action suit claimed Front Porch and USHW violated FEHA when she declined to answer a menstrual-related question, causing the exam's termination and Front Porch's revocation of the employment offer. The lawsuit alleged USHW should be included as an "employer" by FEHA's inclusion of "any person acting as an agent of an employer, directly or indirectly" within that term.

USHW pushed back, asserting that California court decisions had found other employer agents - an employer's managers and supervisors - not within that definition. The Court was not convinced. Its exclusions of such individuals stemmed from the several distinguishing factors, including the chaos of potentially putting executives on the FEHA hook for every personnel decision they make. The Court found USHW, on the other hand, was a large firm which can afford its defense and should be responsible for making sure its screening methods did not violate FEHA. The questionnaire's irrelevant and privacy-invading questions would be a case-in-point.

Thus, the Court ruled FEHA "permits a business entity acting as an agent of an employer to be held directly liable as an employer ... in appropriate circumstances when the business-entity agent has at least five employees and carries out FEHA-regulated activities on behalf of an employer."

Take-Aways:

The Raines decision creates separate FEHA discrimination liability for the actual hiring entity (if it employs at least five persons) and for any business entity (with its own payroll of five-or-more) providing employment-related services to the actual hirer. It is thus feasible that a business with less than five employees could be outside FEHA discrimination claims while its nationwide testing service would not.

In addition to clear responsibility to ensure all third-party screening services are free of discriminatory content or effect, any employer retaining such vendors should be alert to service contract terms placing all obligation on that employer to defend the third-party and cover the latter's resulting FEHA liabilities.

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

See also,

• Take Heed Responding to Harassment and Discrimination Complaints Correctly - Harassment, Seriously (July 28, 2023)
• Name Changer - Department of Fair Employment and Housing is Now the "Civil Rights Department" (September 1, 2022)
• Preventing Workplace Discrimination: Accommodating Disabilities, Made Simple - New Guidelines Package Available for California Employers (August 24, 2017)

Tim Bowles
August 25, 2023

If a California-based employee requires a temporary leave as a reasonable accommodation in connection with a disability not covered under PDL, CFRA, FMLA or workers compensation laws, the employer should grant it to the extent it can do so without causing undue hardship on the business.

Policy Drafting Tips and Best Practices:

• Specify the authorized reasons for and duration of such disability leaves;
• Determine whether they will be paid or unpaid;
• Decide whether employees must use any accrued vacation/PTO and/or any available paid sick leave benefits during the leave;
• Determine if the employee must provide medical certification before taking the leave and, if so, never require medical diagnoses or other private medical facts;
• Explain how employees can maintain group health plan coverage while off work;
• Avoid implementing a blanket policy that automatically terminates an employee after being on leave for a specified period; and
• Seek legal advice before terminating or laying off any disabled employee.

Take-Aways:

Implement and regularly review your handbook to include a disability leave of absence policy, 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 2023 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:

• Pregnancy Disability Leaves Policy - with Child (August 2, 2023)
• Family and Medical Leaves Policy (July 20, 2023)
• Attendance and Absence Policy - Show Up Standards (June 22, 2023)

Cindy Bamforth
August 25, 2023

Effective July 31, 2023, U.S. Immigrations and Customs (ICE) once again required employers to verify all I-9 document submissions in person, ending the remote verification flexibility permitted during the pandemic. See No More Room For Zoom: I-9 Rules Are Tightening July 31, 2023: Real McCoy Rule (June 16, 2023). Employers had until August 30, 2023 to physically examine all documents verified remotely during that flexible time period.

There is now an exception to "in person." ICE's Final Rule permits an employer in good standing with and using E-Verify -- the free online service for verifying new employee immigrant status -to examine I-9 supporting documents an employee transmits, followed by a videoconference in which the employee presents the same documents. The employer must note the remote verification on the I-9 form and keep copies of both sides of employees' documents. Employers may continue physical document inspections if they prefer.

If an employer does not participate in E-Verify, by August 30, 2023 it must still physically re-examine all documents accepted remotely during the temporary pandemic rules. (The Department of Homeland Security has stated it likely will not target employers that, despite acting diligently, are unable to complete their physical examinations by that date.)

The I-9 form has also been modified and can be used as of August 1, 2023. Employers may continue using the prior version through October 31, 2023.

Take Aways:

Employers should carefully review and comply with all I-9 requirements, always using the current Form I-9 for each new hire. If an employer has remote employees -- and particularly ones who cannot easily come into the place of business - it should register with E-Verify to permit the remote submission and examination of documents for I-9 compliance.

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

See also:

• Wavelength Management Workplace Policy Handbook & Forms for 2023 - Grow the Flow (August 15, 2023)
• Personnel Records Policy - Preservation Salvation (April 27, 2023)
• For the Records - Sound Management Practices for Personnel Documentation (August 14, 2020)

Helena Kobrin
August 17, 2023

The federal Department of Labor has cited five McDonald's franchisees for child labor violations involving close to 400 children at 78 locations in Louisiana, Texas, Kentucky, Indiana, Maryland, and Ohio, including two ten-year-olds - legally not permitted to work - working as late as 2 A.M.

The federal government and many states have specific laws governing ages, hours and types of work permitted for minors. The laws often prohibit children under age 14 from working at most occupations. They restrict 14- and 15-year-olds from working more than certain specified hours to avoid interfering with their schooling and prohibit work in most hazardous occupations. 16- and 17-year-olds are still restricted as to hours of work and jobs performed, but to a lesser degree.

In the McDonald's cases, children under 16 were operating prohibited manual deep fryers, an oven, and trash compactors and working more hours than permitted.

Wage and Hour Division Dallas Regional Administrator Betty Campbell stated: "Employers must never jeopardize the safety and well-being of young workers or interfere with their education. While learning new skills in the workforce is an important part of growing up, an employer's first obligation is to make sure minor-aged children are protected from potential workplace hazards."

She continued: "Employers are strongly encouraged to avoid violations and their potentially costly consequences by using the many child labor compliance resources we offer or by contacting their local Wage and Hour Division office for guidance."

Examples of two states with restrictions on minors working are California and Florida. In addition to ages, hours and types of work restrictions, California requires employers to obtain work permits and Florida requires age certifications, in each case, issued by the minor's school.

Take Aways:

Before hiring minors, employers must become educated on the federal and state restrictions for minor employment and comply with those in all minor hiring decisions. Employers must comply with whichever law, state or federal, is stricter on a given point.

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

See also:

• Older Workers Have Rights - and Experience: Seniors Get It Done (June 2, 2023)
• Sexual Harassment Is No Joke; EEOC Obtains $2 Million Settlement with McDonald's Franchisees for Tolerating Sexual Harassment (February 10, 2023)
• Predator Extinction Program: EEOC Sues Chipotle for Sexual Harassment of Teen Workers (March 18, 2022)

Helena Kobrin
August 11, 2023

California requires all employers to provide lactating employees with reasonable time and adequate space to express breast milk in private at or near the employee's usual work area. The location, which cannot be a bathroom, must have access to electricity or alternative devices to operate an electric or battery-powered breast pump and be safe, clean, and hazard-free, with a place to sit and a surface to place a breast pump and personal items. The company must also provide access to a sink with running water and a refrigerator or another cooling device for storing milk.

California Labor Code section 1034 also requires all employers to develop and implement a lactation accommodation policy including:

• The right to request lactation accommodation;
• The process for initiating and responding to the request; and
• The right to file a Labor Commissioner complaint for any perceived noncompliance.

Policy Drafting Tips and Best Practices:

• Include the above points in the policy;
• Describe how the employer's lactation room or location complies with the law;
• Consider attaching a copy of the Labor Code sections 1030-1034 to the policy; and
• Distribute the policy to all new hires and to any employee who makes an inquiry about or requests parental leave.

Take-Aways:

Implement and regularly review your handbook to include a lactation accommodation policy, 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 2023 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:

• Mom Discrimination - Black Employee Charges Walmart's Unequal Treatment (March 3, 2022)
• What's New in 2020 Freedom of Expression - Higher Workplace Standards to Assist Lactating Moms (January 17, 2020)
• EEOC Settles Female Miner Discrimination Case for $690,000 (June 27, 2019)

Cindy Bamforth
August 10, 2023

California leads the nation in restricting the kinds of workers validly classified as independent contractors/"non-employees." See, e.g., California's Independent Contractors - An Endangered Species by Newly Enacted "AB 5" (October 4, 2019).

Los Angeles has now gone further, directing that many contracts for freelance services within its city limits must be in writing. This "Freelance Worker Protection Ordinance" provides for recovery of the contract's or labor's value, double damages for failure to pay on time, and attorney fees.

A "Freelance Worker" is an individual or entity composed of no more than one person hired to provide services in the city for compensation. A Freelance Worker has no employees. A "Hiring Entity" is regularly engaged in business or commercial activity (including non-profits), with exception for those hiring "app-based transportation and delivery drivers to provide prearranged services."

The ordinance covers work performed for the Hiring Entity on or after July 1, 2023 valued at $600-plus either by an individual job or cumulative jobs in a calendar year.

The contract must contain: ● name, mailing address, phone number, and, if available, email address of each party; ● itemization of all services to be provided, their value and rate and method of compensation; and ● the payment date or how that date will be determined. If the contract does not specify the due date, payment must be made within 30 days after the services are delivered.

Any Freelance Worker waiver of the ordinance's requirements "shall be deemed contrary to public policy and shall be void and unenforceable."

The Hiring Entity may not retaliate against a Freelance Worker asserting rights under the ordinance.

A Freelance Worker may complain to the city's Office of Wage Standards and/or file suit to enforce the ordinance or recover damages and attorney fees. Those damages may include: ● "the value of the contract or the work performed, whichever is greater"; ● up to twice the amount not paid by the due date; and ● an additional $250 for Hiring Entity refusal to provide a requested written contract.

Take-Away: In addition to validly classifying workers as independents by this state's highly constrictive standards, businesses must take care to confirm in writing -- and to timely pay on -- even one-event or single "gig" one-person services performed within L.A. city.

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

See also:

• Preference Doesn't Matter Incorrect Classification Leads to Massive Liability (May 5, 2023)
• Cautionary Tale Episode 62 - Department of Labor $5.6 Million Judgment for Drivers Miscast as Independent Contractors - Feds Fed Up with Truckers Misclassification (February 3, 2023)
• Employee or Independent Contractor? Employers Who Misclassify Workers Put Themselves at Risk (September 16, 2022)

Tim Bowles
August 4, 2023