California Governor Gavin Newsom will end the COVID-19 State of Emergency February 28, 2023.

Effective February 3, 2023, Cal/OSHA “non-emergency”/prevention regulations replaced the prior emergency temporary standards. They apply to most California workers not covered by the Aerosol Transmissible Diseases rules, to remain in effect for the next two years, the recordkeeping subsections for three years.

Under the new regulations, employers are no longer required to maintain a standalone COVID-19 Prevention Plan. Instead, employers must address and include their COVID-19 preventative procedures in their Injury and Illness Prevention Program (IIPP) or in a separate document.

Employers must also:

• Provide effective COVID-19 hazard prevention training;
• Provide face coverings when required by CDPH and provide respirators upon request;
• Identify COVID-19 health hazards and develop methods to prevent transmission in the workplace;
• Investigate and respond to COVID-19 cases and close contacts;
• Make testing available at no cost, including to all employees in the exposed group during an outbreak or a major outbreak;
• Notify affected employees of COVID-19 cases in the workplace;
• Maintain records of COVID-19 cases and immediately report serious illnesses to Cal/OSHA and to the local health department when required; and
• Report major outbreaks to Cal/OSHA.

The revised regulations no longer require employers to pay employees while they are excluded from work. Instead, employers must provide information regarding:

• COVID-19 related benefits potentially available under applicable laws
• any applicable leave policies
• any leave guaranteed by contract

Important changes to definitions:

• “Close contact” is now defined by the size and nature of the workplace. For indoor airspaces of 400,000 or fewer cubic feet, “close contact” is sharing the same indoor airspace with a COVID-19 case for a cumulative total of 15 minutes or more over a 24-hour period during the case’s infectious period. For indoor airspaces of greater than 400,000 cubic feet, “close contact” is being within six feet of a COVID-19 case for a cumulative total of 15 minutes or more over a 24-hour period during the case’s infectious period.
• “Exposed group” is clarified to include employer-provided transportation and employees residing within employer-provided housing covered by the COVID-19 prevention standards.

Cal/OSHA has published updated FAQs and its updated model COVID-19 Prevention Program.

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

See also:

• Covering Employment Legal Essentials and New Workplace Laws (February, 9, 2023)
• Management 101- Workplace Policy Handbook & Forms for 2023 (January 27, 2023)

Cindy Bamforth
February 15, 2023

Arizona owners of 18 California, Arizona, and Nevada McDonald’s franchises have agreed with the federal Equal Employment Opportunity Commission (EEOC) to pay $1,997,500 to settle a sexual harassment lawsuit.

The suit accused AMTCR California, LLC, AMTCR Nevada, Inc., and AMTCR, Inc. (AMTCR) of taking no action to stop known sexual harassment by employees, including supervisors and managers, in its restaurants. AMTCR’s young, teenaged employees were the principal targets not only of offensive comments, but also unwanted touching, sexual advances, and intimidation.

AMTCR has also agreed to stop such conduct in all its restaurants and implement extensive measures to prevent recurrences, including engaging an outside monitor to oversee AMTCR’s handling of such complaints; taking surveys in the restaurants; updating its policies; staff training; and implementing a centralized tracking system.

EEOC Chairperson Charlotte A. Burrows stated: “Preventing and remedying systemic harassment and protecting vulnerable workers from discrimination are key priorities for the Commission. Teenage workers are especially vulnerable to harassment. The EEOC will continue to use all its tools—including outreach and education, technical assistance and, where necessary, litigation —to tackle workplace harassment.”

Had AMTCR implemented measures to protect vulnerable employees and acted swiftly when sexual harassment occurred, it would have saved millions in fines and legal fees and avoided the bad publicity of an EEOC lawsuit. Most important, it would have protected numerous young employees from humiliating and offensive behavior.

Take-Aways:

Employers have a legal and moral obligation to prevent sexual harassment and rapidly deal with it when it occurs. Sexual harassment training for managers and other employees is required in California and other places. Such training helps employees recognize and stop bad behavior in its tracks. Employers should provide such training and seek attorney assistance to ensure they have appropriate safeguards in place, including handbooks or other policies.

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

See also:

• Boundaries, Explained: Mandatory Sexual Harassment Prevention Training (January 26, 2023)
• Cautionary Tale Episode 50: Do Something: EEOC Sues Convenience Stores Owner for Condoning Sexual Harassment (March 4, 2022)
• What’s New for 2019 California’s Increased Protections Against Workplace Harassment (January 31, 2019)

Helena Kobrin
February 10, 2023

California is notorious for penalizing improper classification of employees as independents. Not to be outdone, the federal Department of Labor is also cracking down on employers who similarly miscast workers.

Case in point is the “consent judgment”, i.e., court-filed settlement agreement, establishing that auto parts distributor Parts Authority Arizona LLC and joint employer Arizona Logistics Inc. misclassified 1,398 truck drivers as independent contractors with $2.8M back wages and another $2.8M in penalties now owing.

The misclassification resulted in not paying minimum wage or overtime and no reimbursement to drivers for use of personal vehicles, all in violation of the Fair Labor Standards Act.

Solicitor of Labor Seema Nanda stated: “The U.S. Department of Labor will combat misclassification schemes and wage theft through pursuing all the employers that are responsible for depriving employees of their rights under the Fair Labor Standards Act.”

Take-Aways:

Correct classification of workers is a crucial part of avoiding attacks from government agencies and workers themselves. Where truck drivers are concerned, there are also many other state and federal regulations and court decisions impacting pay, other employment requirements, and how to keep the drivers and our highways safe. Consulting with an experienced employment attorney can help employers avoid attacks.

Our attorneys Tim Bowles, Cindy Bamforth or Helena Kobrin can assist employers with proper classification of employees and other legal requirements.

See also:

• Cautionary Tale Episode 61: $1.8 Million Citation for Independent Contractor Misclassification (January 20, 2023)
• Hands Off: California’s Meal and Rest Breaks Don’t Apply to Local Drivers Hauling Interstate Goods (February 11, 2022)
• Saved by the Prop: Voters Pass Proposition 22; A Reprieve for California’s Gig Economy (November 6, 2020)

Helena Kobrin
February 3, 2023

Many in the home care industry mistakenly pay hired caregivers as independent contractors.

Case in point: the Labor Commissioner has cited two related agencies, Angel Connection Nursing Care and Angel Connection Nursing Services of Long Beach – and their owners individually – $1.8 million for misclassifying 66 employees as independents.

The state found the companies failed to pay minimum wage, failed to withhold payroll taxes and provide proper wage statements, and did not have workers’ compensation coverage.

Triggered by reports from the Pilipino Workers Center and Bet Tzedek Legal Services, the Labor Commissioner assessed $213,163 unpaid minimum wages, $283,058 liquidated damages, $329,515 overtime, $14,123 contract wages, and $181,534 interest, totaling $1,021,393 due to workers. The citations added $330,000 penalties for misclassification, $171,000 for the unitemized wage statements, and $357,046 for violating a stop order for the lack of workers compensation.

The Commissioner found that Angel Connection “exercised control over the wages, hours and working conditions of the misclassified employees.” Such control is a hallmark of employee – and not independent contractor – status.

Commissioner García-Brower stated: “When workers are misclassified as independent contractors, there is a damaging domino effect that impacts all levels of our economy. In this case, caretakers were systematically denied minimum wage, overtime, and other legally required working conditions.”

Take-Aways:

Independent contractor classification is unfounded where hiring agencies exercise control over the caregiver’s hours and the work to be performed. The above assessment illustrates the vital importance of properly classifying such workers under state standards, preferably with assistance of knowledgeable employment counsel.

See also:

• Cautionary Tale Episode 57: Car Wash Dusted: Employer Hit with $800,000 “Wage Theft” Citation (May 18, 2022)
• Cautionary Tale Episode 48: Violating Employment Laws Can Prove Terminal: Labor Commissioner Revokes Garment Manufacturer’s License (January 6, 2022)
• Cautionary Tale Episode 44: Fined Dining: Restaurant Must Eat $1.6M Bill for Labor Violations (August 26, 2021)

Helena Kobrin
January 20, 2023

Buried among previous online guidances on the California Equal Pay Act, the Labor Commissioner has issued FAQs to shed light on SB 1162, California’s new pay transparency (disclosure) law.

Effective January 1, 2023, SB 1162, requires employers to provide pay rate information to applicants and employees, include pay rate information in advertising if a company has more than 15 employees, and maintain records relating to pay rates. Companies with more than 100 employees also have to maintain certain statistics and related data concerning pay and racial, ethnic and sex categories. See What’s New in 2023: Total Transparency: New Law Requires Pay Rate Disclosures (November 11, 2022).

The updated FAQs clarify:

• The “more than 15 employees” threshold is the same as qualification for 2022 COVID-19 Supplemental Paid Sick Leave, i.e., the total employees nationwide, with only one employee required to be in California.

• Pay scale must be listed in the advertisement itself and not require the reader to connect to another document via a link or QR code. The rule applies for in-state jobs as well as any positions that could be performed remotely from California.

• “Pay scale” is “the salary or hourly wage range the employer reasonably expects to pay for a position.” It can be a single number if the employer will only pay one amount and not a range.

• If the pay rate will have a commission or piece rate component, that needs to be included in “pay scale” disclosures, but not bonuses, tips, or other benefits.

• To enable state investigation for Equal Pay Act compliance, employers must maintain pay scale records for three years following a worker’s employment.

Take-Aways:

Employers should determine what portions of SB 1162 cover their operations and ensure they are complying with those requirements. Consulting with a knowledgeable employment attorney can assist in implementing these new laws.

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

See also:

• Mind The Gap – Disparities Persist in California Pay Rates (March 25, 2022)
• Understanding California’s Equal Pay Act – Labor Commissioner Issues Frequently -Asked Questions On Workplace Gender Parity (April 22, 2016)
• California Labor Laws 2016: Fair Pay Act Aims To Level The Playing Field – Law Mandates Equal Pay Between Genders for Equal or Substantially Similar Work (November 18, 2015)

Helena Kobrin
January 13, 2023

Employers should provide employees with clear written instructions on how to report workplace-related difficulties, problems or confusions, such as regarding job performance, fair treatment under office policy, co-worker disputes, or any other work-related concern.

Policy Drafting Tips:

• Instruct employees to submit a written report to human resources, the employee’s supervisor, or anyone else in senior management;
• List the types of reports that should be escalated directly to the CEO or business owner, such as reports regarding violation of federal or state law, health or safety hazards that pose a threat to one or more persons, harassment or discrimination, or reports involving a supervisor who might not be able to handle the matter objectively;
• Include an at-will statement;
• Remind employees that if their grievances cannot be resolved internally under this policy, then they could seek resolution under any applicable company-issued mediation and arbitration procedures; and
• Include an anti-retaliation provision.

Take-Aways:

Implement and regularly review a comprehensive, clearly written handbook to include a reporting disputes and open-door 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 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:

• Workplace Policy Handbook & Forms for 2023 – Workable Hypothesis (December 30, 2022)
• Handbook Helper Episode 12 Prying Eyes- Employee Privacy Policy (September 30, 2023)
• Handbook Helper Episode 5 Golden Rules – Workplace Conduct Policy (July 8, 2022)

Cindy Bamforth
January 12, 2023

[We start another calendar year of assisting employers in the courts. With slight adjustments, I again offer this 2022 piece, originally titled “The Game.” New year, time-worn realities.]

After compliments for our preparations in a trial last year, the thus-appreciated judge then declined my pitch to place his views on our firm’s Yelp page. Nice try counsel.

A Berkeley hippie from the 60s, I went off to 70s law school determined to use eventual skill and position to beat back injustice somewhere. This past fall, my class commemorated 45 years out in the world. Snap your fingers: boom, 45 years man.

Back when wetter behind the ears, I had a vague vision of political futures, standing before multitudes, telling it like it is, admired or at least respected by all.

Rather, by turns and circumstance, I landed in the courts, beginning as the proverbial spear carrier, second or third “chair” as we say. My mentor, the near-peerless Earle Cooley of Boston, put my supporting role pretty succinctly: “today you stay seated and shut up, eyes forward in a gaze of strategic cunning.”

I have since had a more-than-fair share of lead work, our firm largely defending employers in the soup, also known as California civil litigation. The deal:

If you are an owner or manager facing a former employee’s threatened or filed suit, our condolences. If it’s any consolation, you are not alone. By rough count, we see as many as 100 such cases initiated in L.A. County every week. We welcome you to a whole new universe, the legal one;

• Law practice is not a science; it is an art
• A lawsuit is not a replay of what actually occurred between the contending parties, it is a reenactment contest with respective lawyers the directors
• While attorney duty is to represent the client “zealously within the bounds of the law,” zeal is civilly managed passion and diligence, not unhinged, ridiculing rage. We “do” litigation surgically, not with flamethrowers. There is a time to fight like hell, but that cannot be an end in itself
• Accordingly, it’s a rare employment case that has any business making it to trial; if it got that far, it’s likely a case that’s been mismanaged by either or both sides
• The practical pressures on the contenders can and should commonly lead to settlement if: a) the lawyers do their work thoroughly and, vis-à-vis each other, with relative honesty; b) each lawyer can thus constructively educate all concerned: own client, opposing counsel, opposing party, possible mediator; and c) both sides can with relative rationality evaluate the good sense of resolving the matter and moving on
• While litigation is not a little like dentistry without the Novocain, employers must consider the spent resources as an investment. A resolved suit is a lesson demanding greater awareness and better protocols to head-off trouble next time before it goes full-Perry Mason; and
• … and finally, lawyers are not management, we are advocates (fancy word for salespeople). Our clients are the decisionmakers; we can do no more than provide our best possible guidance.

45 years of this and counting? Making a living by such contention is an acquired taste to be sure, only navigated by some attempted informality on occasion. Still looking for that first judge-authored Yelp review, hopefully not too ungenerous.

And so we work.

Tim Bowles
January 6, 2023

The Internal Revenue Service has announced its 2023 optional standard mileage reimbursement rate for employee business use of a personal vehicle, effective January 1, 2023, up from the mid-year increase of 62.5 to 65.5 cents/mile.

These rates apply to electric and hybrid-electric automobiles, as well as gasoline and diesel-powered vehicles.

These standard business mileage rates stem from annual government studies of fixed and variable automotive operating costs, including insurance, repairs, maintenance, gasoline and oil.

Under California Labor Code section 2802, employers must reimburse employees for all actual work-related expenses necessarily incurred.

Take-Aways:

Employers applying the IRS standard should reimburse work-related employee vehicle use at the new 65.5 cent/mile rate starting January 1, 2023.

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

See also:

what a difference a half-year makes – four cent increase, IRS standard mileage rate(July 8, 2022)

what’s new in 2022 mileage reimbursement rates - IRS standard mileage rate increasing 2.5 cents(December 28, 2021)

Cindy Bamforth
January 5, 2023

Without clear-cut guidelines even well-intended actions can result in harmful consequences.

For example, enterprising employees might be tempted to respond directly to employee requests for recommendations and/or reference letters, which could create inconsistency. A well-written reference checks policy will typically instruct employees to refrain from responding directly and refer such requests to the human resources department or to another designated person for any response.

Employees might also be tempted to respond to media inquiries on the employer’s behalf. A media contact policy would likely specify that only a designated company representative may respond to inquiring media on the company’s behalf.

If the company has real or virtual bulletin boards, the handbook could include a provision specifying that the employer has reserved these boards for the posting of legal notices and other official company business and that any posting must be approved in advance by human resources or senior management.

Take-Aways:

Implement and regularly review a comprehensive, clearly written handbook to include such policies.

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 template handbook – which contains the above policies 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:

• Handbook Helper Episode 15- Socially Acceptable Social Media Policy (November 25, 2022)
• Handbook Helper Episode 12: Prying Eyes – Employee Privacy Policy (September 30, 2022)
• Handbook Helper Episode 5: Golden Rules – Workplace Conduct Policy (July 8, 2022)

Cindy Bamforth
December 23, 2022