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In the face of a particularly intense string of 100-plus degree days ahead, Cal/OSHA’s July 12, 2023 news release reminds employers to safeguard workers from heat illness, referencing the particular areas of the state likely to be hit the...
In the face of a particularly intense string of 100-plus degree days ahead, Cal/OSHA’s July 12, 2023 news release reminds employers to safeguard workers from heat illness, referencing the particular areas of the state likely to be hit the hardest.
Heat illnesses are potentially fatal. The two most serious are: heat stroke (e.g., red, hot dry skin, high body temperature, muscle twitching, confusion, fainting, convulsions, unconsciousness); and heat exhaustion (e.g., dizziness, headache, sweaty skin, fast heartbeat, nausea, vomiting, weakness, and/or cramps). Heat rash and heat cramps can also occur.
Cal/OSHA regulations require all employers with “outdoor areas of employment” to take heat illness prevention measures starting at 80° F, with escalation to high heat measures at 95°F for employers in agriculture, construction, landscaping, oil and gas extraction, and transportation of heavy industrial and commercial products that include loading and unloading.
The July 12 release directs employers to take five protective measures for outdoor workers:
The agency also cautions employers to correct unsafe heat conditions for indoor workers as part of their Injury and Illness Prevention Programs (IIPP) and to encourage outdoor workers to understand and exercise their illness prevention rights, such as cool-down rest time as necessary.
Cal/OSHA provides heat illness prevention training materials with its Heat Illness Prevention web page and the Heat Illness Prevention tool.
Take-Aways:
Heat illness prevention is a major priority to avoid serious illness or death of workers. The Cal/OSHA website has good resources to assist. The five above actions must be part of heat illness prevention measures in policy and in practice starting at 80 degrees.
For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
See also:
Tim Bowles
July 14, 2023
Ending the employment relationship can be relatively painless if properly conducted in adherence to a well-written handbook policy and legally compliant procedures.
Ending the employment relationship can be relatively painless if properly conducted in adherence to a well-written handbook policy and legally compliant procedures.
Policy Drafting Tips and Best Practices:
Take-Aways:
Implement and regularly review your handbook to include a resignations and terminations policy.
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 email her.
See also:
Cindy Bamforth
July 13, 2023
While ordinarily a January 1 activity, some changes in federal laws are requiring employers to update their employment law posters as of July 1, 2023.
While ordinarily a January 1 activity, some changes in federal laws are requiring employers to update their employment law posters as of July 1, 2023. The changes are triggered by the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act) and the Pregnant Workers Fairness Act (PWFA).
The new posters are:
The same distribution requirements for these posters apply as for all other mandated posters, including in California. Employers may email the required notices to remote workers, but also must physically display them in remote workspaces where any employee works 100% of the time.
Take-Aways:
Employers should always make their required poster updates, including these new federal posters.
For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
See also:
Helena Kobrin
July 7, 2023
When people read about a deranged gunman murdering seven agricultural workers at two farms in Half Moon Bay, they likely gave no thought to possible OSHA safety citations for the employers.
When people read about a deranged gunman murdering seven agricultural workers at two farms in Half Moon Bay, they likely gave no thought to possible OSHA safety citations for the employers. However, Cal/OSHA has now investigated those incidents and is proposing penalties against California Terra Garden, Inc. (Terra) and Concord Farms Inc. (Concord) of $113,800 and $51,770 respectively.
Terra’s proposed penalties involve the lack of a plan to immediately notify workers to shelter from an active shooter threat. Concord’s alleged violations include ignoring earlier incidents of serious violence and failing to implement preventative measures. Both employers neglected to train workers on such safety plans in a language they understand.
The Cal/OSHA enforcement actions may not be the end of the story, as other agencies are also investigating these incidents.
Cal/OSHA has many good tools on its website, including guidelines for maintaining workplace security. Employers can use the guidelines when creating their required Injury and Illness Prevention Plan.
Take-Aways:
Most places of employment will never be the target of a psychopath looking to cause severe harm. Regardless, employers should effectively implement and train employees on workplace safety plans from multiple kinds of threats. All California employers should have an Injury and Illness Prevention Plan.
For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
See also:
Helena Kobrin
June 30, 2023
Tardiness is any time an employee arrives late to work or is not ready to work at the start of a scheduled shift. Unexcused or excessive tardiness can often lead to disciplinary action.
Tardiness is any time an employee arrives late to work or is not ready to work at the start of a scheduled shift.
Unexcused or excessive tardiness can often lead to disciplinary action. However, employers must administer tardiness standards in a uniform, nondiscriminatory manner. No-fault attendance policies, such as automatic discipline for five or more lateness in a three-month period should never include legally protected reasons, e.g., reasonable disability accommodations, mandatory paid sick leave, pregnancy disability leave, jury duty, or Labor Code 1139 “emergency conditions.”
Policy Drafting Tips:
Take-Aways:
Implement and regularly review your handbook to include a tardiness policy.
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 email her at officemgr@tbowleslaw.com.
See also:
Cindy Bamforth
June 29, 2023
While the truth has been frequently known to set individuals free, Sacramento-based Taqueria Garibaldi has received a $140,000-plus reality adjustment after reportedly attempting to intimidate staff by having a fake priest extract...
While the truth has been frequently known to set individuals free, Sacramento-based Taqueria Garibaldi has received a $140,000-plus reality adjustment after reportedly attempting to intimidate staff by having a fake priest extract confessions during a U.S Department of Labor investigation.
Accused of wage underpayment and of funneling customer tip money to enrich senior management, the restaurant evidently doubled down by bringing in what the Catholic News Service later termed a fake priest to obtain employee confessions of workplace misconduct. Management also reportedly threatened workers with “immigration consequences” if they cooperated with the government.
The DOL was not amused. Announcing the ensuing court order for Taqueria Garibaldi to pay $70,000 in back wages, another $70,000 in damages, and $5,000 in penalties, the agency offered that “[its] investigators have seen corrupt employers try all kinds of scams to shortchange workers and to intimidate or retaliate against employees but a northern California restaurant’s attempt to use an alleged priest to get employees to admit workplace ‘sins’ may be among the most shameless.”
The judge directed the employer to never “terminate, threaten to terminate, retaliate, or discriminate against any employee in any other way because such employee spoke or was perceived to have spoken with … or otherwise cooperated or perceived to have cooperated with a [DOL investigator].”
The May 8, 2023 order also ordered Taqueria Garibaldi to implement a “time system that accurately records all hours worked by employees, including when employees clocked in and out, as well as a computation of all regular hours and overtime hours worked in a day.” The system must “accurately record the time the employee (i) begins work each day by clocking in as soon as the employee begins any period of work; (ii) [clocks] out for any unpaid breaks of 20 minutes or more; and (iii) [clocks] out when the work period ends.”
The employer was also directed not to “alter or manipulate time or payroll records to reduce the number of hours actually worked by an employee unless an employee agrees in writing to correct an error.”
To other employers similarly inclined, DOL lawyer Marc Pilotin stated, “This employer’s despicable attempts to retaliate against employees were intended to silence workers, obstruct an investigation and prevent the recovery of unpaid wages … the [DOL] will not tolerate workplace retaliation and will act swiftly to make clear that immigration status has no bearing on workers’ rights under the Fair Labor Standards Act.”
Take-Aways:
Obviously, management must conscientiously seek to embrace and document its compliance with all applicable wage and hour standards. Managers must also accord government investigators the benefit of the doubt as responsible for assisting employers to correct any shortcomings. Circling the wagons and treating cooperating workers as adversaries in an audit are an investment in madness.
For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
See also:
Tim Bowles
June 23, 2023
Attendance and absence policies should of course make clear that turning out as scheduled is expected.
Attendance and absence policies should of course make clear that turning out as scheduled is expected. The care comes in listing excused or authorized absences, including legally-protected sick leave, pregnancy disability leave, on-the-job injuries or illnesses, and, as of January 1, 2023, permitted “emergency condition” absence under California Labor Code section 1139. That law protects covered employees for refusing to report to, or leaving, a workplace on a reasonable belief of an unsafe “emergency condition” defined as:
Policy Drafting Tips:
Take-Aways:
Implement and regularly review your handbook to include an attendance and absence from work policy.
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 email her at officemgr@tbowleslaw.com.
See also:
Cindy Bamforth
June 22, 2023
Management should put some thought into the content of music transmitted over workspaces. In Sharp v. S&S Activewear, L.L.C.
Management should put some thought into the content of music transmitted over workspaces. In Sharp v. S&S Activewear, L.L.C. (June 7, 2023), the federal appeals court for the western states drew the line between at least tolerably appropriate and unlawfully offensive.
Embodied in the U.S. Civil Rights Act of 1964 (also known as “Title VII”) and California’s Fair Employment and Housing Act, sexual harassment is a form of unlawful workplace discrimination, targeting individuals due to gender. Management and co-workers are all subject to such prohibition. Unwelcome and inappropriate conduct is illegal whether aimed at men, women, or individuals of the opposite or same sex. Examples include sexual jokes or innuendos, displaying images of a sexual nature, hindering another’s movements, or demanding inappropriate physical contact. Employers are now on notice that music broadcast over work areas can also create such unlawful conditions.
Stephanie Sharp and seven others – including one man – alleged employer S&S permitted its managers and employees to routinely play “sexually graphic, violently misogynistic” music throughout its 700,000-square-foot warehouse in Reno, Nevada. According to Sharp, the songs’ content denigrated women and used offensive terms like “hos” and “bitches.” Songs like “Blowjob Betty” by Too $hort contained “very offensive” lyrics that “glorifie[d] prostitution.” Likewise, “Stan” by Eminem described extreme violence against women, detailing a pregnant woman being stuffed into a car trunk and driven into water to be drowned.
S&S doubled down. While not denying the music was offensive, the company contended it did not constitute an illegally hostile environment because it was offensive to both women and men, therefore no particular gender was targeted. God bless the lawyers.
Worse, the trial judge agreed with S&S and dismissed the suit. The message: if an employer is an “equal opportunity harasser,” Title VII’s prohibitions will not apply.
The Ninth Circuit disagreed. The court observed that a workplace saturated with sexually derogatory content can constitute harassment “because of sex” and that it has consistently validated Title VII claims challenging a workplace “polluted with insult and intimidation.”
The court found that rather than absolving an employer for conditions that offended both sexes, the warehouse-wide playing of music better reflected that music’s “invidious pervasiveness.” “Because S&S’s management was unreceptive to complaints, Sharp was forced to tolerate the music and the toxic environment as a condition of continued employment. And, even if the ubiquitous music was not (and need not have been) targeted toward any particular woman, female employees allegedly experienced the content in a unique and especially offensive way. Whether sung, shouted, or whispered, blasted over speakers or relayed face-to-face, sexist epithets can offend and may transform a workplace into a hostile environment that violates Title VII.”
Moreover, “Title VII’s prohibition of discrimination ‘because of ... sex’ protects men as well as women … [H]arassing both men and women cannot “cure” bad conduct and “do[es] not rule out the possibility that both men and women ... have viable claims against [their employer] for sexual harassment.”
Thus, an “employer cannot find a safe haven by embracing intolerable, harassing conduct that pervades the workplace. Crediting such an approach would leave a gaping hole in Title VII’s coverage … that an individual ‘consistently abused men and women alike’ provides no defense to an accusation of sexual harassment.”
Take-Aways:
This employer had every opportunity to take the harassment complaints over this music seriously and, regardless of any manager’s possible affinity for the genre, to avoid a suit and potential liability by eliminating the claimed hostile workplace condition. The decision is a lesson to all management to operate as the proactive solution to good faith concerns raised by their workforce, not as a dismissive part of the problem.
For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
See also:
Tim Bowles
June 16, 2023
As the pandemic descended in March 2020 , restricting workforce millions to their homes, U.S Immigration and Customs Enforcement (ICE) suspended the in-person verification requirement for I-9 supporting documents, permitting remote methods...
As the pandemic descended in March 2020, restricting workforce millions to their homes, U.S Immigration and Customs Enforcement (ICE) suspended the in-person verification requirement for I-9 supporting documents, permitting remote methods – e.g., email, fax, and video platforms – to show proof of citizenship or other OK-to-work status.
Employers remotely verifying were to place “COVID-19” on section 2 of the form and to confirm the documents in person on resumption of normal operations, with a further “documents physically examined” notation on that form.
Such remote verification flexibility is ending on July 31, 2023. Employers will again need to verify in person all I-9 supporting documents. They will also have until August 30 to physically verify the forms previously confirmed remotely.
Stay tuned for more developments. The Department of Homeland Security is considering a rule adopting alternate procedures for I-9 document reviews that could go into effect later this year.
Take-Aways:
Employers must ensure they are verifying in person all I-9 supporting documents after July 31, 2023 and, by August 30, update all remotely provided I-9 forms with in-person verification.
For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
See also:
Helena Kobrin
June 16, 2023