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As of January 1, 2023, California employers of five or more on payroll must provide up to five days of consecutive or non-consecutive unpaid bereavement leave to eligible full-time or part-time employees upon the death of a “qualified...
As of January 1, 2023, California employers of five or more on payroll must provide up to five days of consecutive or non-consecutive unpaid bereavement leave to eligible full-time or part-time employees upon the death of a “qualified family member” (e.g., spouse, child, parent, sibling, grandparent, grandchild, domestic partner, or parent-in law), which must be taken within three months of the death.
Employees must be employed at least 30 days prior to commencement of the leave and although unpaid, the employee may choose to use any available paid sick leave or vacation/PTO benefits.
Policy Drafting Tips:
Take-Aways:
Implement and regularly review your handbook to include a bereavement leave 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:
Cindy Bamforth
September 21, 2023
Although current illegal drug use is not protected under California or federal law, employers with 25 or more on payroll must reasonably accommodate eligible employees who wish to enter an alcohol or drug rehabilitation program.
Although current illegal drug use is not protected under California or federal law, employers with 25 or more on payroll must reasonably accommodate eligible employees who wish to enter an alcohol or drug rehabilitation program. See, California Labor Code sections 1025-1028.
Smaller employers may also need to provide time off to attend such programs as a reasonable accommodation under the federal Americans with Disabilities Act and/or California’s Fair Employment and Housing Act.
Thus, all California employers should consider including an alcohol and drug rehabilitation policy in their employee handbook.
Policy Drafting Tips:
Take-Aways:
Implement and regularly review your handbook to include an alcohol and drug rehabilitation 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:
Cindy Bamforth
September 14, 2023
The Equal Opportunity Employment Commission (EEOC) is issuing a series of guidances , each an extensive manual on addressing a particular workplace disability.
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 guidance contains sections on:
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:
Helena Kobrin
September 8, 2023
Civil rights laws protect employees from discrimination based on various classifications, including religion.
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:
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...
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:
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:
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.
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,
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...
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:
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:
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.
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:
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 –...
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 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:
Helena Kobrin
August 11, 2023