The federal Ninth Circuit Court of Appeals recently confirmed that a former worker’s self-professed speculation that her employer terminated her due to her age and national origin was insufficient to establish a discrimination claim. Opara v. Yellen.

Joan Opara served for 27 years as an IRS Revenue Officer. After the agency terminated her for alleged unauthorized access to tax returns of friends and associates, she claimed the firing was improperly motivated by her age (over 39) and national origin (Nigerian) in violation of the Age Discrimination in Employment Act (ADEA) and the Civil Rights Act of 1964. On review of the elements of federal age and national discrimination claims, the Ninth Circuit agreed with the lower court’s pre-trial dismissal of her case for lack of sufficient evidence.

To determine an employee’s liability for age discrimination:

The plaintiff-employee must establish a prima facie (“at first sight” or “first impression”) case, including: (1) her or his membership in the protected class (40 years old or older, employed by a company with 20 or more on payroll); (2) satisfactory job performance; (3) discharge; and (4) replacement by “substantially younger employees with equal or inferior qualifications”; and

If the employer can then “articulate some legitimate, nondiscriminatory reason for the challenged action,” the employee must show that the articulated reason is pretextual, “either: (1) directly, by showing that unlawful discrimination more likely than not motivated the employer; (2) indirectly, by showing that the employer’s proffered explanation is ‘unworthy of credence’ because it is internally inconsistent or otherwise not believable; or (3) via a combination of these two kinds of evidence.”

While the Ninth Circuit panel found Opara had satisfied the prima facie step to take her case to trial, she failed to adequately deflate the IRS’s showing of legitimate bases for her termination -- i.e., her various reported violations of the tax return access laws -- as false, pretextual justifications.

Opara’s sole evidence was her “uncorroborated and self-serving testimony.” To qualify her case for a trial, Opara would have to have presented more than “mere conclusory allegations.”

The appeals court also agreed with the lower court’s dismissal of Opara’s national origin discrimination claims for the same reason, not sufficient independent indication of the employer’s pretext.

Take-Aways:

Unfortunately, frivolous workplace discrimination accusations are not rare. The Opara decision underscores that when an employer can show a former worker is just speculating about improper discrimination in his/her termination, it can avoid trial.

See also:

• Tracking Down Discrimination - EEOC 2020 Report Retaliation, Disability Claims Predominate (April 19, 2021)
• Workplace Discrimination Prevention - California’s Fair Employment and Housing Act, A History (March 29, 2021)
• Older Folks Are People Too (Expanded Federal Pandemic Guidelines Allow Favorable Treatment for Aged 65-Plus Personnel (July 24, 2020)
• Age Discrimination in Employment – EEOC Supplies New Rules that May Limit Claims (July 5, 2012)

Tim Bowles
March 10, 2023

California employers must pay overtime to non-exempt employees for work in excess of eight hours per workday or 40 hours per workweek.

Companies should thus include a clear handbook policy describing such rules.

Policy Drafting Tips:

• Require non-exempt employees to work overtime as needed on a regular or occasional basis;
• Attempt, but do not promise, to provide advance notice of overtime scheduling whenever practicable;
• Attempt to offer overtime on an equal basis to affected workers;
• Require advance approval of anticipated overtime;
• Confirm all overtime hours must be promptly and accurately reported and will be paid; and
• Caution that unauthorized overtime may, however, lead to disciplinary action.

Take-Aways:

Implement and regularly review a comprehensive, clearly written handbook to include an overtime 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:

• California Minimum Wages Rates for 2023 (December 7, 2022)
• The Basics of Overtime – Five Rules in California (April 27, 2018)

Cindy Bamforth
March 9, 2023

The Wage and Hour Division (WHD) of the federal Department of Labor has aimed a compliance initiative at home health services, nursing homes, residential facilities and other employers focusing on care services. In 1,600 investigations since 2021, the WHD has found violations in 80 percent of the cases, recovering “$28.6 million in "back wages and damages for nearly 25,000 workers,” plus “assessments of nearly $1.3 million in civil monetary penalties for willful violations.”

The highest number of violations were for misclassification of employees as independent contractors or failure to pay minimum wage or overtime.

In January 2023, the WHD announced $500,584 in back wages and liquidated damages (an award doubling the amount of wages owed) against four care homes in the Sacramento area – Nwabeke Care Home, Peer Home Inc., L&S Gentle Care Inc., and Bedette’s Place Inc.—and their owners, including violations for minimum wage, overtime and time records.

WHD District Director Cesar Avila stated: “The majority of care workers are women and low-wage earners who provide essential services for those most in need in our communities. The U.S. Department of Labor is committed to holding care service employers accountable and ensuring their workers are paid in full and as required by federal law.”

As we have written, this is an industry that California’s Labor Commissioner also has in its sights.

Take-Aways:

Employers in the care industry need to protect their businesses from being the next target. They must understand and implement state and federal employment requirements. Those looking to open such facilities should determine their employment obligations in advance and ensure their business model will enable them to pay what is required. Consulting with a knowledgeable employment attorney is crucial for getting it right.

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

See also:

• Cautionary Tales Episode 31: Residential Care Facility Not Feeling the Love: 708,521 Reasons to Pay Workers Legally (July 12, 2019)

Helena Kobrin
March 3, 2023

Employers must maintain complete and accurate timekeeping records, whether electronic, handwritten, or punch clock.

Such records protect all concerned, for example enabling an employer to refute a nonexempt employee’s claims for unpaid overtime, off-the-clock hours worked, and missed, shortened or late meal breaks.

Thus, a properly drafted timekeeping policy is crucial.

Drafting Tips:

• Instruct employees to record all time worked, no matter how small an amount;
• Include a definition of “time worked,” with examples;
• Require employees to precisely track all their meal breaks;
• Prohibit all “off-the-clock” work, with examples;
• Confirm all overtime, even if unauthorized, will be paid according to law;
• Prohibit falsification of time records, with examples;
• Periodically require employees to attest to their full and accurate recording and provision of meal and rest breaks;
• Instruct employees to obtain their supervisor’s approval for any corrections or notes placed on a time card or clock; and
• Caution employees that repeated failure to clock in or out or report all hours worked may subject them to disciplinary action.

Take-Aways:

Implement and regularly review a comprehensive, clearly written handbook to include a timekeeping 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:

• Cautionary Tales Episode 27 – Walmart Hit with Six Million Dollar Verdict for “Discouraging” Off-Site Meal Breaks (March 23, 2019)
• The Basics of Overtime – Five Rules for California (April 27, 2018)
• Super-Sized McDonald’s Overtime Class Action Ruling – Company Loses by Management Inattention to California Complaint Pay Policies and Practices (April 28, 2017)

Cindy Bamforth
February 24, 2023

The California Legislature has tried for years to stop mandatory arbitration provisions in employment contracts. The Governor or a court has overruled each such effort because of conflict with the Federal Arbitration Act (FAA).

The latest attempt, AB 51, an admittedly attempted end run around the FAA, was to become effective on January 1, 2020, but was stopped by an injunction.

AB 51 inconsistently: (1) prohibited an employer from requiring any employee to waive a right provided under the California Labor Code or Fair Employment and Housing Act (FEHA) (including the right to take claims to court); and (2) made violations a civil and criminal offense; but (3) allowed enforcement of arbitration contracts, even if signed unlawfully.; See What’s New in 2020 California Prohibits Mandatory Employee Arbitration Agreements (December 18, 2019). While AB 51 prohibited waivers of Labor Code and FEHA rights generally, the true target was arbitration clauses.

AB 51’s undoing was that it once again violated the FAA. State laws conflicting with national laws such as the FAA are invalid. “Because the FAA’s purpose is to further Congress’s policy of encouraging arbitration, and AB 51 stands as an obstacle to that purpose,” the federal 9^th Circuit Court of Appeals (over California) has now ruled in United States Chamber of Commerce v. Bonta that AB 51 violates the FAA and is preempted.

The court stated that AB 51 “resulted in the oddity that an employer subject to criminal prosecution for requiring an employee to enter into an arbitration agreement could nevertheless enforce that agreement once it was executed.”

California can still ask the full 9^th Circuit or the U.S. Supreme Court to review this decision. If one of those courts accepts such a request, stay tuned for the next round.

Employers need to be aware that employees can still challenge arbitration agreements on general contract principles, such as threats, physical coercion, heavily one-sided terms (called “unconscionability”). However, statutes may not penalize employers for the mere act of entering into such an agreement or enforcing a valid one.

Take-Aways:

The subject of mandatory arbitration in employment agreements has been on a roller coaster in California for many years. The safest practice dictates consulting knowledgeable employment counsel who stay up-to-date on the latest requirements for employment arbitration agreements and can advise accordingly.

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

See also:

• Cautionary Tale Episode 53 Poetic Justice Smack Down – Reconsidering Arbitration Agreements (April 6, 2022)
• Their Day in Court – Sexual Harassment Accusers May Opt Out of Forced Arbitration (March 11, 2022)
• The Right to Fight – Battle Continues Over Employer-Required Arbitration Agreements (September 24, 2021)
• The Need for Written Employer Agreements – Well-Drafted Contracts Eliminate Uncertainty and Ambiguity (March 30, 2018)

Helena Kobrin
February 24, 2023

While some say that the past one hundred years delivered lessons that have enabled a more stable and interdependent world, we need not look very far for signs to the contrary - decaying, ineffective educational systems, growing pharmaceutical dependence for emotional "stability," environmental deterioration, and destruction of human rights and civil liberties to "fight" faceless terrorism. These herald this emerging Twenty-First Century as more anguished and inhumane than the one that has just passed.

I became a lawyer in the 1970s infused with the idealism of the time. I have since tried to best use my profession to support the basic rights -- and to promote the responsibility -- of humankind to create and change conditions for the better.

I first journeyed to West Africa to assist Mary Shuttleworth for a week-long Youth for Human Rights International conference in Ghana, July, 2005. That was the plan: one week, meet a few young people, help with speeches on the U.N’s Universal Declaration of Human Rights, go home to frame a few pictures for the desk and continue the law practice full time.

Change of plans. A skinny kid named Joseph Jay Yarsiah from some country called Liberia also showed up at that conference. Over the week we hung-out, he described the unbelievably savage 14-year-long Liberian civil war (1989 – 2003) in which he had grown up. This was a region notorious for child soldiers, kids as young as 7 or 8 years old reduced to mindless killing machines as graphically portrayed in the motion picture Beasts of No Nation (2015).

Jay told of his family’s repeated miraculous escapes from torture and execution. Yet, he was not bent on rage and revenge despite all the reasons otherwise. Rather, Jay was calmly and resolutely determined by human rights and literacy to help bring his country and people out of their hell-on-Earth.

At the end of that week (again, this was July, 2005), Jay asked: “Will you help me?” That was THE cross-roads moment. I thought, “oh man, I am just a lawyer from L.A., what can I do? So unfair to ask me that question!” Yet, an admonishment rang loud inside my head: “The wrong thing to do is … nothing.” So, I said yes.

I returned to West Africa ten months later, May, 2006, flying into Liberia to meet Jay and his intrepid band of 20-something colleagues. Devastation unfolded in the gathering darkness on the 40-mile drive to town: the airport a military base for 15,000 U.N. peacekeepers keeping the warring factions from further slaughter; dirt poor roadside population; five heavily fortified checkpoints before reaching the capital Monrovia; no electricity and no running water; and a generation of young starkly illiterate after over a decade of a ruined, bombed-out education system.

Were the challenges insurmountable: illiteracy, poverty, corruption, injustice? The real question was and is whether one is willing to fulfill the first prerequisite no matter the odds: to show up.

We thus created the YHRI African Human Rights Leadership Campaign, eventually activating thousands of youth as human rights educators in Liberia, Sierra Leone and Ghana to make a difference, socially, culturally and economically. The seeds so planted have bloomed: doctors, educators and other civil servants and, dare I admit, lawyers.

That “Campaign” effort (2006 – 2013) was prelude. In August, 2013 came news that every one of the 17,000 high school graduates applying to the University of Liberia had flunked the entrance exam. Explanation: a newly appointed minister had changed the grading from a bell curve to a 70% proficiency standard. … and not a one passed. Result: greater powers promptly sacked the minister.

The word “education” is from the Latin educere, to “lead out.” If education is the systematic giving and receiving instruction for application, it must mean someone is doing the leading. But with education systems built on rote memory and institutions fraught with incompetence and corruption, the questions in Liberia and West Africa were and are who is actually doing any leading and to what end?

So in 2014 we turned focus to UDHR Article 26, the right to meaningful education, partnering with Applied Scholastics International, an NGO offering solution to illiteracy through the proven effective learning methods of American author L. Ron Hubbard, widely known as “Study Technology ” or “Study Tech.”

Nearing two decades of work in the region, I have never been more optimistic. Year-after-year, our African Literacy Campaign continues to deliver “competency-based education” workshops and training to teachers, students and administrators. Time and again, Study Tech’s learning tools inspire educators and youth to view life with new eyes, with hope that in their hands are the means to make the impossible possible for self, family, community and country.

Only through an effective literacy education movement -- equipping the emerging generations with competent, courageous leadership -- can West Africa emerge from the wars, corruptions and other disasters that have plagued the region for too long. We aim to contribute in ways that can make a true difference toward this worthy end.

I went to Africa for one week but never came home. And so we work.

Tim Bowles
February 17, 2023

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.

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:

• 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:

• 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