California Alcohol Servers Must Be Trained by August 31, 2022

The Responsible Beverage Service (RBS) Training Program Act of 2017 (AB 1221) rendered formerly voluntary training for alcohol beverage servers and their managers mandatory.

Existing servers and managers who check IDs, take orders, and pour or deliver alcoholic beverages on Department of Alcoholic Beverage Control (ABC)-licensed premises must pass Responsible Beverage Service (RBS) training and take the exam to be certified by August 31, 2022.

Persons newly becoming alcoholic beverage servers or managers have 60 days to receive their RBS certification.

The ABC has a three-step procedure for obtaining certification:

"1. Register with ABC as a Server on the RBS Portal
2. Take RBS training from an approved RBS Training Provider
3. Return to the RBS Portal to take ABC's alcohol server certification exam."

ABC Licensing Division Chief Jaime Taylor said: "The RBS training program is designed to provide licensees, managers, and servers with the tools and knowledge needed to promote responsible consumption, reduce youth access to alcohol, and make communities safe."

Employers must pay for server and manager training and certification. Employing non-certified servers and managers after August 31 subjects an ABC licensee to discipline, ranging from a warning to license revocation.

Take-Away: If you run any ABC-licensed establishment with on-premises alcohol service, have your managers and servers complete RBS certification process by August 31, 2022.

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

See also:

• Happier and Healthier - Workplace Policy Handbook & Forms for 2022 (April 29, 2022)
• Employee Training Programs - When Employers Must Compensate for Worker Education. (March 29, 2011)

Helena Kobrin
August 5, 2022

Employee Confidentiality Policy

In addition to implementing written confidentiality/nondisclosure agreements, a confidentiality policy can remind employees of their ongoing responsibility to protect the company's trade secrets, customer data and other confidential information.

Policy Drafting Tips:

• Identify the types/categories of confidential information;
• Instruct employees what to do if uncertain whether a document or other material contains confidential information;
• Prohibit unauthorized divulgence or removal of confidential or proprietary information;
• Permit disclosure of unlawful acts in the workplace; and
• Ensure the policy does not deter or prohibit discussions about employment terms and conditions.

Take-Aways:

Implement, regularly review and update as needed a comprehensive, clearly written handbook.

We trust this series will inform employers on the importance of having a well-written handbook to assist new hires, existing employees, and management alike. To purchase our template handbook 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 6 - Positive Punishment - Progressive Discipline Policy(July 20, 2022)
• Handbook Helper Episode 5 - Golden Rules - Workplace Conduct Policy (July 8, 2022)
• The Need for Written Employment Agreement - Well-Drafted Contracts Eliminate Uncertainty and Ambiguity (March 30, 2018)

Cindy Bamforth
July 29, 2022

Cal/OSHA Clarified Latest ETS Changes

Earlier we detailed the latest changes in the Cal/OSHA COVID-19 Prevention Emergency Temporary Standards (ETS). See What's New In 2022: Kickin' Corona: Cal/OSHA Further Revises Testing and Prevention Standards (May 6, 2022).

Cal/OSHA has also issued additional guidance on those changes. A brief fact sheet lays out quarantine periods after a positive test or exposure. And special FAQs point out the changes to the ETS:

• Definitions of "close contact," "infectious period," and "COVID-19 test" have been changed significantly, and the term "fully vaccinated" has been removed from the regulations. The revised ETS uses the "close contact" definition adopted by the California Department of Public Health (CDPH), i.e., sharing an indoor airspace with an infected person (per laboratory or clinical diagnosis) for a cumulative total of at least 15 minutes in 24 hours.
• Face covering requirements are the same whether vaccinated or not, and are no longer mandatory in all indoor settings for the unvaccinated (but stay tuned for LA County's possible new mask mandate).
• Rules for mandatory masking and exclusion of employees who had a close contact with a COVID-infected person now follow the California Department of Public Health (CDPH) requirements.
• Cal/OSHA also now follows the CDPH Isolation and Quarantine Guidance for those who test positive, allowing return to work after five days if the person tests negative and wears a mask for five additional days.
• Cleaning and disinfecting requirements are no longer included.
• Employers must provide respirators to employees who request them for voluntary use indoors or while in vehicles with others, and testing for all symptomatic employees, regardless of vaccination status.
• Additional rules for employer-furnished housing and transportation, as well as outbreaks, both major and non-major.

Other, previously existing rules remain in place and are addressed in the fully revised FAQs.

Take-Away: California employers should consult the quarantine period fact sheet and the new FAQs for helpful guidance on current requirements for COVID-19 issues.

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

See also:

• Find Out What's New in 2022: Paid COVID Sick-Leave Expanded: California's New Variant: Up to 80 Hours Paid Time Away (February 25, 2022)
• Cautionary Tale Episode 47: COVID-19 Required Benefits Take Two: El Super Grocery Store Citations Tripled (October 29, 2021)

Helena Kobrin
July 28, 2022

Progressive Discipline Policy

Although seemingly straightforward, progressive discipline policies can lead to trouble if not properly written or implemented.

Progressive discipline imposes increasingly harsher consequences upon an employee's repeated misconduct, such as:

• Verbal warning;
• Written warning;
• Suspension without pay;
• Demotion;
• Final written warning; and ultimately
• Termination of employment

Rightfully so, management should accord productive employees a second or third chance to mend their ways and nobody would be fired for a first-time minor infraction.

However, progressive discipline policies must be carefully drafted to allow sufficient employer flexibility to skip one or more steps in response to employees' egregious misconduct.

Drafting Tips:

• Specify progressive discipline policy is a guideline only and that management reserves the discretion to adjust the extent and character of the discipline to the severity of the offense, taking into account the employee's duration of employment and prior performance and conduct record;
• Permit the company to bypass any steps in a progression prior to termination; and
• Confirm nothing in the policy is intended to override or conflict with the company's at will employment policy.

Take-Aways:

Implement, regularly review and update as needed a comprehensive, clearly written handbook.

We trust this series will inform employers on the importance of having a well-written handbook to assist new hires, existing employees, and management alike. To purchase our template handbook 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 (July 8, 2022)
• Happier and Healthier - Workplace Policy Handbook & Forms for 2022 (April 29, 2022)
• Progressive Discipline in The Workplace - Nice Idea, But Don't Promise (July 16, 2012)

Cindy Bamforth
July 20, 2022

Mandatory Semi-Annual Sexual Harassment Prevention Training
The Advantages of Live Webinar Training

Every two years, California employers with five or more on payroll must provide at least two hours of classroom or other effective interactive sexual harassment training and education to all California supervisory employees and at least one hour of such training to all nonsupervisory employees.

Employers must also provide such training within six months of a worker's hire or promotion to a supervisory position.

The required instruction  includes:

• information and practical guidance on federal and state standards to prevent, correct and remedy sexual harassment;
• "practical examples aimed at instructing supervisors in the prevention of harassment, discrimination, and retaliation"; and
• prevention of abusive conduct.

From 15 years of classroom-style delivery, our live webinar training suits on-site and remote workers alike.  We track each employee's interaction and attentiveness and aim through Q&A to achieve each participant's thorough understanding of the materials.

Live classroom-style interactive webinars are superior to point-and-click e-training.

• Real time interaction with trainer over Zoom, with ability to apply principles to specific work conditions;
• Immediate answers to questions, benefitting all attendees on the webinar;
• Employees will be called on randomly throughout, which means they typically pay closer attention;
• Live training confirms company commitment to effectively addressing and preventing unlawful or inappropriate workplace conduct;
• Proper emphasis on importance of information relative to specific scenarios; and
• By the bulk of feedback we've received, our live sessions are engaging and interesting.

Contact us TODAY for more information, pricing or to schedule your workforce's webinars at (626) 583-6600 or officemgr@tbowleslaw.com

July 20, 2022

California's Standards for On-Call and Standby Time

An employer may or may not have to compensate a worker for on-call time depending on the restrictions on that person's actions and movements. The dividing line - not necessarily definite in every case - is whether the employee is "subject to the control of the employer" (controlled standby) or merely available if he/she chooses to respond (uncontrolled standby).

Pertinent factors include:

● Any significant geographic restrictions on the worker's location or travel during the on-call time;

● Any tight time deadline for the employee to respond to a call;

● A frequency of calls that unreasonably restricts the employee's actions while on standby;

● Whether the worker can hand off his/her on-call time to one or more other employees;

● The extent the employee is free to engage in personal activities during on-call time (e.g., in a movie theater with phone off);

● Industry practice and the nature of the employment relationship. For example, the California Supreme Court has ruled that security guard overnight sleep time on assigned premises was controlled standby; and

● Any other limitations on worker freedom of movement or action while on-call (e.g., restricting a standby employee's alcohol consumption)

A worker on controlled standby earns wages for that on-call/standby time as well as travel time to work and back and, of course, the call-back working hours.

Employers need only compensate a worker on uncontrolled standby for the call-back time and, if required to report to a client's location, for the travel time. Management can choose to pay an uncontrolled standby worker for travel time into the office and back but is not obligated to do so.

Take Aways: Management should confirm its on-call conditions in written policy and protocols, with care taken to emphasize an employee's wide choices for response if uncontrolled standby is intended. If it makes sense for the nature of business, one possible underscore for uncontrolled standby is to send out the call to several workers with first-to-respond the one to perform the work.

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

See also:

• California Mid-Year Minimum Wage Rate Increases (June 24, 2022)
• Don't Hide The Ball - Employers Should Not Ignore Records Requests (July 16, 2021)
• Cautionary Tales Episode 27 - Walmart Hit Six Million Dollar Verdict for "Discouraging" Off-Site Meal Breaks (May 23, 2019)
• The Basics of Overtime - Five Rules in California (April 27, 2018)

Tim Bowles
July 15, 2022

Four Cent Increase, IRS Standard Mileage Rate

Departing from the usual annual adjustment, the IRS has announced a mid-year increase -- effective July 1, 2022 - on its employee vehicle reimbursement rate from 58.5 cents/mile to 62.5.

Commissioner Chuck Rettig stated: "The IRS is adjusting the standard mileage rates to better reflect the recent increase in fuel prices. We are aware a number of unusual factors have come into play involving fuel costs, and we are taking this special step to help taxpayers, businesses and others who use this rate."

California's Division of Labor Standards Enforcement recognizes the IRS rate to normallysatisfy an employer's obligation under Labor Code 2802 to reimburse workers for their "actual and necessary" employment-related vehicle use. However, an employee who can show business-related vehicle expenses in excess of the IRS rate is entitled to the employer's payment of the difference.

Take-Away: Employers applying the IRS standard should reimburse work-related employee vehicle use at the new 62.5 cent/mile rate from July 1 on.

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

See also:

• What's New in 2022 Mileage Reimbursement Rates - IRS Standard Mileage Rate Increasing 2.5 Cents (December 28, 2021)
• What's New in 2020 Road Trip Dip IRS Mileage Rate Down a Half Cent Effective January 1, 2020 (January 30, 2020)

Helena Kobrin
July 8, 2022

Workplace Conduct Policy

Employers can and should provide employees with properly-written rules and standards of conduct. These include prohibited conduct, such as:

• Falsifying employment applications or other company records;
• Violating safety rules;
• Faulty or otherwise inadequate job performance;
• Dishonesty;
• Violating harassment policies;
• Failing to observe work schedules, including rest and meal breaks;
• Sleeping on the job;
• Workplace threats and acts of violence; and
• Unsatisfactory performance.

Policy Drafting Tips:

• Eliminate descriptive adjectives, e.g., "excessive" tardiness, "extreme" insubordination, to deter subjective debates over violations;
• Clearly state the listed offenses are examples, not exhaustive of all prohibited conduct; and
• Confirm that specifying violations does not in any way limit or contradict at-will employment status.

Take-Aways:

Implement, regularly review and update as needed a comprehensive, clearly written handbook.

We trust this series will enlighten employers on the importance of having a well-written handbook to assist new hires, existing employees, and management alike. To purchase our template handbook 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 2 at the Starting Line - Clearly Stating New Hire "Probationary" Period (June 17, 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)
• If it Isn't Written, Workplace Policy is Anyone's Guess (November 1, 2018)

Cindy Bamforth
July 8, 2022

Holiday Time-Off Policy, Unpaid or Paid

Contrary to perhaps common perception, California's private employers have no legal obligation to grant employee time off for holidays or to pay for that time. Whether to provide workers that time away - paid or unpaid - to promote workforce goodwill and morale is a different question.

A business that opts in favor of such off time should best issue written policy with the rules. For instance:

● List those holidays on which the company is closed. It's management's choice on which and how many. A sample:

New Year's Day
Martin Luther King Day
Presidents' Day
Memorial Day
Juneteenth National Independence Day (June 19)
Independence Day
Labor Day
Thanksgiving Day
Friday after Thanksgiving
Christmas Eve
Christmas Day

● State whether holidays are paid or unpaid. If paid, specify the rate, e.g., the number of hours for which an employee is normally scheduled to work on the day in question. The policy can exclude commissions or bonuses in the calculation;

● Set out eligibility standards. For example, as long as the categories are clearly defined, introductory and temporary em­ployees need not be entitled to paid benefit;

● Require employees to work or be on an excused absence (i.e., for approved vacation time, paid sick leave or religious accommodation) on the workdays immediately preceding and following the holiday;

● Specify that an hourly employee who works on a paid holiday receives both holiday pay and compensation for the actual hours worked;

● Address the result when a holiday falls on a day the business is already closed. For instance, if on a Saturday, the holiday could be observed on the prior Friday; if on a Sunday, observation could be on the following Monday;

● Provide that a holiday which occurs while an employee is on a scheduled vacation is not calculated as a vaca­tion day used; and

● Deal with the instances of workers unable or unwilling to take the paid time on the traditional holiday list. While an alternative "personal" or "floating" holiday is possible here, it's best to link that day off to another specific event, e.g., the employee's birthday, or to require the employee to take that time off within the same week as the holiday. (To avoid underpayment penalties at the end of a worker's employment, management should also ensure that employee actually takes that designated day off); and

● Anticipate the possible company need, on reasonable advance notice, to forego a holiday (as in an emergency) or eliminate it from the list, for example due to the nature of the business.

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

See also:

• Happier and Healthier - Workplace Policy Handbook & Forms for 2022 (April 29, 2022)
• Play Pay - Employer's Guide to California Holiday Policy (May 28, 2021)
• California Paid Vacation Can Be No Holiday - State Rules Ban "Use It or Lose It"(May 21, 2021)

Tim Bowles
June 30, 2022