California Labor Code section 515.5 exempts certain computer software professionals from overtime compensation upon receipt of specified minimum compensation.

California's Department of Industrial Relations (DIR) has announced its rate increase for this minimum, effective January 1, 2023, to $53.80, up from $50.00. Alternatively, an otherwise qualified salaried employee is eligible on minimum annual compensation of $112,065.20, up from $104,149.81, payable at least once monthly at no less than $9,338.78.

An exempt computer professional must also meet each of the Labor Code section 515.5 high-level skills and duties criteria. Among these, the employee must be "primarily engaged" (more than 50% of the time) in intellectual or creative work requiring the exercise of discretion and independent judgment such as ● applying systems analysis to determine "functional specifications" of hardware, software or systems; ● designing computer systems or programs; and/or ● documenting, testing, creating or modifying computer programs related to computer systems software or hardware design.

Although these workers need not be paid overtime premium under California law, employers should further ensure they meet the comparable federal law exemption, which includes a less restrictive definition of "primary" duty, a lower hourly/salaried threshold, and similar skills and duties tests.

Such computer professionals may also qualify for the administrative, executive or "learned profession" exemptions from overtime. Each category possesses its own distinct qualifications.

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

Cindy Bamforth
November 4, 2022

Labor Commissioner Recovers $282,000 for Car Wash Workers

The car wash industry is a frequent target of the Labor Commissioner. A 2017 enforcement action against Classic Castle Car Wash, Inc. (Classic Castle), owner of two car washes in Long Beach, ultimately resulted in a judgment of $282,000 for unpaid overtime, minimum wage, reporting time, liquidated damages and waiting time penalties in 2020.

Classic Castle paid more than a fifth of the assessed amount between 2017 and 2020, but then paid no more.

Unfortunately for Classic Castle, Labor Code 90.8 went into effect on January 1, 2022. This law permitted the Labor Commissioner to file a lien on real property owned by employers for amounts they owe under citations, findings, or decisions.

Following entry of a judgment in 2021, Classic Castle employees informed the CLEAN Carwash Worker Center, which passed on to the Labor Commissioner, that Classic Castle was selling its business. The Labor Commissioner then filed a lien against Classic Castle's real property, resulting in payment of the remaining fines a month later.

Labor Commissioner Lilia García-Brower stated: "The new lien authority provides a practical tool to recover owed wages. It has simplified and expedited the process to get into the pockets of workers and their families the money that is rightfully theirs. These courageous workers reported the wage theft and kept us informed of actions by the car wash owners, which ensured we could ultimately hold the employer accountable and ensure they received their stolen wages."

For further assistance, please contact one of our attorneys Tim Bowles, Cindy Bamforth or Helena Kobrin.

TAKE-AWAYS: Employers must pay their employees correctly. They need to pay minimum wage and overtime and not have employees waiting around for work without paying them for their time.

See also:
Cautionary Tale Episode 57 Car Wash Dusted - Employer Hit with $800,000 "Wage Theft" Citation (May 18, 2022)
Cautionary Tale Episode 36 Is Gig Up for Car Wash Company? First AB 5 Suit Challenging Independent Contractor Classification (July 31, 2020)
Cautionary Tales Episode 26 - Playa Vista Car Wash Takes a Dunking for $2.36 Million "Wage Theft" (May 2, 2019)

Helena Kobrin
October 28, 2022

Workplace Political Speech Dos and Don'ts

Particularly in a hotly contested election cycle, California employers should take care not to discriminate against workers for political activities, affiliations or speech. Management should be familiar with and apply these laws:

• Labor Code section 1101 prohibits employers from any rule or policy to: (i) prevent an employee from engaging in political activities or seeking public office; or (ii) control or direct such activities or affiliations.

• Labor Code section 1102 bars employers from coercing or influencing workers into a specific course or line of political activity. For example, an employer may not threaten to fire a worker who campaigns or votes for a particular candidate or talks about doing so.

• California's Ralph Civil Rights Act prohibits actual or threatened violence because of someone's political affiliation.

Employers have the right to ensure workers are productive and not using paid work time to engage in unrelated activities. Policy and practice should respect employee political activity that does not interfere with work while permitting discussion of employment issues such as benefits and wages.

Management should adequately document actions to resolve any alleged abuse of these rules.

As long as an employer abides by these limitations, management may communicate their political beliefs and positions to workers. See, the California Chamber of Commerce's Guidelines for Political Communications to Employees.

TAKE-AWAYS: Management must respect employee political speech that does not interfere with production. Employers should also know the limitations of communicating political views to workers.

For further assistance, please contact one of our attorneys Tim Bowles, Cindy Bamforth or Helena Kobrin.

See also:

• Handbook Helper Episode 5: Golden Rules - Workplace Conduct Policy (July 8, 2022)
• Handbook Helper Episode 3: Name Your Passion - Employee and Workplace Political Activities Policy (June 29, 2022)
• Can't We All Just Get Along? - Political Speech and the Workplace (October 16, 2018);

Helena Kobrin
October 21, 2022

Workplace Video Surveillance Policy

Many businesses install on-premises closed-circuit camera systems to monitor shared or common areas.

Video surveillance can deter, prevent, or help resolve theft, physically threatening incidents, or other dangerous conditions or situations.

California's state constitution grants all persons a reasonable expectation of privacy from government and commercial intrusion. Thus, businesses must not use unduly invasive electronic surveillance systems.

A video surveillance policy should:

• Reserve the company's right to install video-only cameras in non-private areas of the workplace, i.e., steer clear of private offices, changing rooms, or bathrooms (indiscriminate sound recordings are barred by Penal Code section 632);
• Inform employees that video feeds may be monitored, recorded, and viewed periodically;
• Caution workers that recordings can also occur outside of business hours;
• Clarify the company reserves the option of retaining or securely discarding such recordings at its discretion; and
• Confirm that employees have no reasonable expectation of privacy in any areas under video surveillance.

Take-Away:

Implement and regularly review a comprehensive, clearly written handbook with an updated and compliant workplace video surveillance 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:

• Handbook Helper Episode 13: Company Devices: Hand On, Hands Off- An Electronic Systems Policy (October 14, 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
October 21, 2022

An Electronic Systems Policy

Most businesses rely extensively on workplace emails, texts, and other electronic systems.

Without written guidelines, employees might not understand their privacy rights can fail to extend to personal communications over company equipment.

Best practices thus include sound policy confirming management's ability to access and monitor its electronic communication devices, including proper employee use and etiquette in utilizing these systems.

The policy should:

• Define the company's electronic devices and systems;
• Confirm no reasonable expectation of privacy for information located on company-owned devices and systems;
• Specify management's right to access, monitor, copy, intercept, review and wipe any such information at any time;
• Clarify all such information is company property;
• Restrict the employee's use of such devices and systems to company business; and
• Describe acceptable uses, e.g., no unauthorized software installation, no undisclosed passwords/access codes, and no violations of the company's anti-harassment policy.

Take-Away:

Implement and regularly review a comprehensive, clearly written handbook with an updated and compliant employee electronic usage 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:

• Handbook Helper Episode 12 Prying Eyes - Employee Privacy Policy (September 30, 2022)
• Handbook Helper Episode 6 Positive Punishment - Progressive Discipline Policy(July 20, 2022)
• Handbook Helper Episode 5 Golden Rules - Workplace Conduct Policy (July 8, 2022)

Cindy Bamforth
October 14, 2022

African Literacy Campaign in Liberia and Ghana

Now in our 17th year of collaboration and despite all barriers - a global pandemic being only the latest - I am soon returning to Liberia and Ghana to further our Applied Scholastics International (APS) African Literacy Campaign.On top of the Liberian and Sierra Leonean civil conflicts (1989-2003, 1991-2002 respectively), Ebola prevailed over much of West Africa for most of 2014 and into 2015. Then came COVID. Each calamity has forced the indefinite closures of schools, setting back generations.

We aim to help inspire and sustain a competency-based learning movement to eliminate the illiteracy that underlies the genocides and fuels pandemics. APS brings to the table the proven effective learning methods of American author and humanitarian L. Ron Hubbard, widely known as "Study Technology" or "Study Tech."

We were last in Liberia and Ghana in July, to discuss prospects with leading educators and policymakers. The demand created was immediate, with "wheels up" on October 24:

- In Liberia, we will be delivering a two-day Study Technology seminar and workshop to an expected 100 professors and instructors at Cuttington University's main campus. CU is the oldest private, coeducational, four-year, degree-granting institution in sub-Saharan Africa. Before the civil war, it was renowned as the "Harvard" of the continent, educating generations of leaders, including Jewel Taylor, the Vice President of Liberia and former First Lady. We are collaborating with CU leadership to help create the university's rightful renaissance.

- In Ghana, we will be delivering in Accra a one-day seminar to national policymakers and, in Central Region, the two-day seminar and workshop to leading educators.

We have had the generous contributions of many to make this work possible. To all of our supporters, thank you very, very much. To help fund this next important phase through GoFundMe, please go to:

African Literacy Campaign - Fall, 2022 Delivery

Stay tuned. There is so much more to come!Tim Bowles
October 14, 2022

State Extends COVID-19 Sick Pay and Employer Relief to December 31

On September 29, 2022, the Governor signed Assembly Bill 152 (AB 152) approving two significant COVID-19 workplace provisions, effective October 9 and retroactive to January 1, 2022.

First, AB 152 extends COVID-19 supplemental paid sick leave (SPSL) to December 31, 2022 for active business or non-profit employers of 26-49 employees, operating since before June 1, 2021 with a physical presence in California. AB 152 also addresses other conditions affecting eligibility.

AB 152 continues to December 31 the requirement to provide employees 40 hours of SPSL for certain reasons related to COVID-19, as well as an additional 40 hours following a positive test for the employee or a covered family member. Employers may also require testing after the fifth day from an initial positive COVID test. See also Paid Covid Sick-Leave Expanded: California's New Variant: Up to 80 Hours Paid Time Away (February 25, 2022).

If an employee refuses to be tested, the employer's obligation to provide the SPSL is terminated.

Second, to provide some relief for employers of 26 to 49 employees, AB 152 creates a California Small Business and Nonprofit COVID-19 Supplemental Paid Sick Leave Relief Grant Program reimbursing up to $50,000 to employers who must pay this SPSL during 2022. This grant money is not taxable in California.

Employers who wish to apply for the grants should watch for instructions from the Office of Small Business Advocate, or CalOSBA, which is located within the Governor's Office of Business and Economic Development, or GO-Biz.

Take-Aways: Covered employers must extend their COVID-19 SPSL to the end of this year, but may apply for grants to cover up to $50,000 of their cost for SPSL for the entirety of 2022.

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

See also:

• Cautionary Tale Episode 47 -- COVID-19 Required Benefits Take Two - El Super Grocery Store Citations Tripled (October 21, 2021)
• Cautionary Tale Episode 43 -- COVID Sick Leave Not Optional - Grocery Store Chain Fined Heavily for Violations (August 20, 2021)
• Cautionary Tale Episode 40 - Big Stick Compliance Cal/OSHA Fines Numerous Businesses for COVID-19 Violations (March 4, 2021)

Helena Kobrin
October 7, 2022

Employee Privacy Policy

Starting with well-drafted policy, California employers should ensure their administrative and management staff do not impermissibly disclose any employee's private, personal, health or medical information.

Disclosures must only be given under very limited circumstances, such as:

• To managers when considering a request or need for reasonable accommodation;
• To safety or first aid providers during emergency medical treatment;
• To Cal/OSHA officials;
• As required during an insurance or workers' compensation claim; or
• As needed during a federal or state workplace investigation.

Policy can also instruct all personnel to comply with ● the federal Genetic Information Nondiscrimination Act (GINA) prohibiting employers from requesting or requiring genetic information from employees or their family members; and ● the Health Insurance Portability and Accountability Act (HIPAA), the federal privacy law that safeguards medical information.

Take-Away:
Implement and regularly review a comprehensive, clearly written handbook with an updated and compliant employee privacy 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:

• Handbook Helper Episode 5 Golden Rules - Workplace Conduct Policy (July 8, 2022)
• Handbook Helper Episode 1 Two- Way Street - At-Will Employment Provisions(June 10, 2022)
• Happier and Healthier - Workplace Policy Handbook & Forms for 2022 (April 29, 2022)

Cindy Bamforth
September 30, 2022

Work Hours and Breaks

Except for salaried, legitimately exempt-from-overtime workers, California employers must provide each employee with certain numbers of unpaid meal periods and paid rest breaks depending on how many hours that employee works in each workday.

If an employee misses one or more off-duty meal breaks by the press of a day's work, California Labor Code 226.7 requires the employer to pay an additional one-hour "break premium." The same is true for any day when work demands cause an employee to miss one or more off-duty rest breaks.

California employers should therefore include clear, properly-drafted work schedule and breaks policy in their handbooks.

Policy elements should include:

• Definition of the company's seven-day payroll workweek, within which weekly employee schedules are structured;
• The number and timing of meal breaks;
• When to take paid rest breaks;
• Cool-down periods for outside workers to prevent heat illness; and
• Work schedules for minors.

Take-Away:
Implement and regularly review a comprehensive, clearly written handbook with an updated and California-compliant work schedules and breaks 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:

• Employers Lose Food Fight - Break Premiums Ruled Wages, Must Be Reflected on Paystubs (June 3, 2022)
• Happier and Healthier - Workplace Policy Handbook & Forms for 2022 (April 29, 2022)
• If it Isn't Written, Workplace Policy is Anyone's Guess (November 1, 2018)

Cindy Bamforth
September 23, 2022