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-Aways:

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

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

Workplace Halloween parties can build teamwork and morale if properly planned and managed. Some suggested do’s and don’ts to help make yours a smashing success:

DO: Evaluate what type of Halloween festivities best fit your company’s culture.

DO: Consider ways to celebrate the occasion that minimize the chances for unwanted romantic advances and other improper conduct, for example holding a Halloween luncheon (and not a night party) or including workplace-appropriate team building games and activities.

DO: Make participation in your Halloween celebration voluntary. Respect employees who do not wish to take part.

DO: If you allow costumes, provide advance guidelines, including examples of inappropriate get-ups such as skimpy outfits and costumes likely to be insulting or offensive to other races, cultures, religions, etc.

DO: Apply discipline as needed, such as sending an employee home to change if the costume is inappropriate for the workplace.

DON’T: Allow supervisors to behave inappropriately. Supervisors and managers must be role models and set the example.

DON’T: Look the other way if an employee is being teased about his or her outfit. Such teasing can lead to a harassment claim if management stands by and does nothing.

DON’T: Encourage employees to dress as other co-workers. Such impersonations can lead to mockery or other inappropriate conduct, hurt feelings and/or harassment claims.

DON’T: Allow alcohol consumption. Your business can be liable for physical injuries incurred or sexual harassment committed by a person served alcohol at a company-sponsored party, whether on or off the job or on or off company premises.

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

See also:

• Employers’ Holiday Survival Guide – Avoid Drunk and Disorderly and Keep People Safe (December 10, 2021)
• Cautionary Tale 33: EEOC Settles Tex-Mex Restaurant Servers’ Sexual Harassment Case for $40,000 (August 15, 2019)
• What’s New for 2019 California’s Increased Protections Against Workplace Harassment (January 31, 2019)

Tim Bowles
Cindy Bamforth
October 7, 2022
(Originally published October 16, 2015)

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

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-Aways:

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)

Cindy Bamforth
September 30, 2022

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-Aways:

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)

Cindy Bamforth
September 23, 2022

Many laws and rules dictate whether an employer can legitimately classify someone as an independent contractor (I/C). They include California’s strict ABC three-factor test and the numerous exceptions enacted by the legislature as part of AB 2257, as addressed in our What’s New in 2021 series (links below).

Each state has its own rules, in addition to the IRS behavioral, financial, and relationship factors, and the federal Department of Labor criteria which apply nationwide.

Some employers mistakenly classify workers as I/Cs to avoid paying withholding taxes or because a worker asked for none of the deductions from his/her checks. Others misclassify workers as I/Cs out of ignorance of the law or think they know better. Doing so can be an expensive mistake.

It is a rare month when we are not defending a business challenged for such misclassification.

Perhaps most ironic are the claims from employees who asked to be treated as I/Cs. Yet, empathy for a worker’s financial stress is not a defense to misclassification. Neither is the money saved by not deducting taxes. Rather, government entities view these practices as a company’s attempts to gain an unfair advantage over employers who follow the law.

Take-Aways:

A worker is legally an I/C only if the relationship meets the applicable legal factors. Employers are well advised to consult with an attorney and ensure someone really qualifies as an I/C before classifying the person as such. As the fines and penalties can be substantial, this is particularly critical in rigid “ABC” states like California.

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

See also:

• California’s Newest Independent Contractor Law Part I: Revamped Business-to-Business Exceptions (September 17, 2020).
• California’s Newest Independent Contractor Law Part 2: Revised Referral Agency Exception (September 24, 2020).
• California’s Newest Independent Contractor Law Part 3: “Fine Artists” and Other Clarified and Expanded Professional Services Exemptions (October 1, 2020).
• California’s Newest Independent Contractor Law Part 4: Amateur Umpires and Referees Among Expanded “Specified Occupations” Exceptions to Strict Test (October 22, 2020).
• California’s Newest Independent Contractor Law Part 5: New “Music and Entertainer” Exemption from the Strict “ABC” Test (October 29, 2020).

Helena Kobrin
September 16, 2022

Current temperatures well into the hundreds require employers to safeguard workers from heat illness.

• Plan – Have an effective written heat illness prevention plan, including emergency response procedures.

• Training – Train all employees and supervisors on preventing heat illness (so they can avoid it and know what to do if it occurs).

• Water – Provide free, fresh, pure, suitably cool drinking water so workers can drink at least 1 quart per hour, and encourage them to do so.

• Rest – Encourage cool-down rests in the shade for at least five minutes when workers need to protect themselves from overheating, without waiting until they feel sick to cool down.

• Shade – Provide proper shade when temperatures exceed 80 degrees. Workers must be allowed a shady cool-off area whenever they feel they need it.

Employers can view heat illness prevention requirements and training materials on the Cal/OSHA website, including at the Heat Illness Prevention web page and the Heat Illness Prevention tool.

Take-Aways:

Employers must make heat illness prevention a major priority to avoid serious illness or death of workers. The Cal/OSHA website has good resources to assist in doing so. The five actions discussed above must be part of heat illness prevention measures both on paper and in practice starting at 80 degrees.

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

See also:

• You’re Getting Hotter: California Employers Must Protect Outdoor Workers from Heat Illness (July 9, 2021)
• Cautionary Tales Episode 32 – Protect Workers from Injury – It’s the Law – and the Right Thing to Do (July 19, 2019)
• Cautionary Tales Episode 14 – Workplace Illness and Injury Prevention Programs are Mandatory in California (July 19, 2018)

Helena Kobrin
September 9, 2022
Heat illness is serious and 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.

Title 8, section 3395 of the Cal/OSHA regulations requires all employers 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.

A Cal/OSHA August 29, 2022 news release reminds employers to take these measures to protect employees:

Helena Kobrin
September 9, 2022

To safeguard personnel as well as protect company property from theft or destruction, an employer can search and inspect an employee’s workspace, such as a personal office or cubicle. Yet where should the company draw the line? Can management search a locked desk drawer? An employee locker? A purse or briefcase?

A well-written handbook can and should answer these questions. Policy should spell out: (a) the legitimate grounds for company search and inspection of specified work areas and personal property brought into the workspace; and (b) employee option to leave personal items outside of the office if they do not wish to have them subject to inspection.

Policy elements can also include:

• The specific scope of company’s search and inspection rights, including designated work areas, vehicles, purses, clothing, briefcases and other employee personal property for stolen property, alcohol or drugs in violation of company policy, unauthorized weapons, or other hazardous or unsafe materials;
• Required cooperation in administering this policy;
• Confirmation the company can make such inspections at any time, with or without prior notice or consent; and
• Employees bear the risk of loss of their personal property to the extent permitted by applicable law.

Take-Aways:

Implement and regularly review a comprehensive, clearly written handbook with an updated and California-compliant workplace inspection and personal property 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)
• For the Record – Sound Management Practices For Personnel Documentation (August 14, 2020)

Cindy Bamforth
September 9, 2022