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With the recentU.S. Supreme Court decision overturningRoe v. Wade,the landmark 1973 ruling that legalized abortion, controversial politics is again taking national center stage, potentially in the workplace.
With the recent U.S. Supreme Court decision overturning Roe v. Wade, the landmark 1973 ruling that legalized abortion, controversial politics is again taking national center stage, potentially in the workplace.
Implementing a political activities policy can promote and help maintain a calm, professional work environment, especially when tempers flare.
Drafting Tips:
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:
Cindy Bamforth
June 29, 2022
For decades, California has recognized the validity of "rounding" employee hours to the nearest five minutes, one-tenth or quarter hour, plus or minus, as an "efficient" and "practical" way to calculate pay as long as the practice did not deprive workers of their compensation over time. However, electronic technology's advances may reduce rounding to an historical relic.
For decades, California has recognized the validity of "rounding" employee hours to the nearest five minutes, one-tenth or quarter hour, plus or minus, as an "efficient" and "practical" way to calculate pay as long as the practice did not deprive workers of their compensation over time. However, electronic technology's advances may reduce rounding to an historical relic.
The 2012 See's Candy Shops, Inc. v. Superior Court decision confirmed time-rounding as an acceptable "method for calculating work time and can be a neutral calculation tool for providing full payment to employees ... Assuming a rounding-over-time policy is neutral, both facially and as applied, the practice is proper under California law because its net effect is to permit employers to efficiently calculate hours worked without imposing any burden on employees."
Perhaps the way of hardline phones and snail mail, such methods may soon prove quaintly out-of-date. The California Supreme Court 2021 Kennedy Donohue v. AMN Services, Inc.decision signaled that horizon.
While finding time-rounding improper for measuring the 30-minute meal break required by Labor Code 512 and the Industrial Wage Orders - but cautioning that it was not outlawing the practice for the beginning and end of any daily work shift - the Court observed that rounding's practical advantages continue to weaken as the ability to track exact work time electronically continues to advance.
Just as populations now widely use their smart phones for business communications and financial transactions rendering paper interchange obsolete, e-timekeeping and payroll systems may soon supersede manual time and pay calculations altogether.
Take Away: For now, rounding remains, at least for measuring the start and conclusion of the work day. Management should clearly state any such practice and ensure full fairness to workers in application. However, with vastly more efficient and precise electronic means for tracking work time a virtual certainty, employers should consider transition to the "e-side" sooner than later.
For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
See also:
Tim Bowles
June 24, 2022
California minimum wageis currently $14.00/hour for employers with 25 or fewer employees and $15.00 for employers with 26 or more. Governor Newson hasprojectedan across-the-boards increase to $15.50/hour on January 1, 2023.
California minimum wage is currently $14.00/hour for employers with 25 or fewer employees and $15.00 for employers with 26 or more. Governor Newson has projected an across-the-boards increase to $15.50/hour on January 1, 2023.
These California municipalities will increase their local minimum wage effective July 1, 2022:
Employers must review the information for their location(s) and conspicuously post the current wage notice for each applicable jurisdiction.
Employers with remote employees or employees in more than one location may need to apply different minimum wage rates. The simplest solution to this situation may be to pay the highest applicable required minimum to all employees.
Some cities have different minimum wage laws for hotels. Effective July 1, those rates will be: Long Beach ($16.73); Santa Monica ($18.17), City of Los Angeles ($18.17)(150 rooms or more) and West Hollywood ($18.35).
The UC Berkeley Center for Labor Research and Education publishes regular updates.
See also:
For more information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
Helena Kobrin
Daniska Coronado
June 24, 2022
Workplace policy manuals (handbooks) often include a progression of employee classifications, such as probationary/introductory, regular, full-time, part-time, temporary, leased, exempt from overtime, and non-exempt from overtime.
Workplace policy manuals (handbooks) often include a progression of employee classifications, such as probationary/introductory, regular, full-time, part-time, temporary, leased, exempt from overtime, and non-exempt from overtime.
New Employee Probation Period:
Employers commonly opt to place new hires on a 90-day "probationary" or "introductory" period, that time when the employee will be learning the ropes and demonstrating competence within the business's operations.
Contrary to popular belief:
Drafting Tips:
Clearly define and properly position employee classifications throughout the handbook; ● avoid referring to regular employees as "permanent" as that can contradict at-will employment; ● describe the purpose and expectations of the probationary period and allow flexibility to shorten or extend it; ● and reserve the right to alter or change the employee's job responsibilities at any time during or after the probationary period.
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:
Cindy Bamforth
June 17, 2022
An employer should not underestimate the importance in confirming and preserving in writing "at-will" employment. Most states, includingCalifornia, permit the employment relationship to endat the will ofeither the employer or the employee at any time unless the parties have agreed otherwise. Ambiguity can thus put management at a significant disadvantage.
An employer should not underestimate the importance in confirming and preserving in writing "at-will" employment. Most states, including California, permit the employment relationship to end at the will of either the employer or the employee at any time unless the parties have agreed otherwise. Ambiguity can thus put management at a significant disadvantage.
In Starzynski v. Capital Public Radio, the employee signed an employment at-will agreement that could only be modified by the company's board of directors. However, both before and after signing the agreement, his supervisor repeatedly assured him discharge would only be for unsatisfactory performance, a contradiction to at-will. Seven years later, after the employment relationship abruptly ended, the employee sued, alleging that the supervisor's promise created an implied contract to terminate him only for good cause despite that written agreement.
The court disagreed with the former employee, ruling the signed at-will acknowledgment "cannot be overcome by proof of an implied contrary understanding."
The decision thus confirms the protection of clear and consistent written statements of at-will status.
Drafting Tips:
Use plain language; ● reiterate at-will wording in certain key points throughout the handbook, such as in the disciplinary policy, grievance procedures, performance evaluations; ● confirm that at-will employment status may never be changed except by written agreement between the employee and the company CEO as ratified by the board of directors; ● and ensure job postings, offer letters, and other handbook provisions do not contain any language contradicting at-will status; e.g., do not require the employee to give two weeks' notice of resignation.
Take-Aways:
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:
Cindy Bamforth
June 10, 2022
While logic might suggest no need to reimburse an employee with unlimited minutes for business use of her or his phone, California follows different reasoning.
While logic might suggest no need to reimburse an employee with unlimited minutes for business use of her or his phone, California follows different reasoning.
Labor Code 2802 directs employers to compensate a worker for "all necessaryexpenditures or losses incurred ... in direct consequence of the discharge of his or her duties" (emphasis supplied). "Necessary" expenses include all "reasonable" costs. Even if a worker does not incur any greater cost by using his or her mobile for employer-related calls, a California appeals court has found reimbursement owing for a reasonable percentage of cell phone bills.
In Colin Cochran v. Schwan's Home Service, a customer service manager brought a class action on behalf of some 1,500 others seeking employer reimbursement for mandatory work-related use of their personal cell phones. Schwan's contended it should not have to pay people with unlimited data plans or who had others paying the phone bill as they did not actually incur an additional expense for such use.
The appeals court disagreed. Labor Code 2802 directs reimbursement regardless of whether the employee incurs extra expenses or no matter if someone else actually pays the bill. "Otherwise, the employer would receive a windfall because it would be passing its operating expenses onto the employee ... the employer must pay some reasonable percentage of the employee's cell phone bill."
Take-Aways:
● Adopt a compliant written policy for repayment to employees for reasonable and necessary business-related expenses, including a reasonable percentage for necessary work-related use of personal cell phones;
● Implement reimbursement forms consistent with that policy to enable workers to apply for such repayment, including calculation of that reasonable percentage;
● Assign an appropriate finance manager to review and direct payment of such percentages; and
● Mindful that Labor Code 2802 includes "attorney's fees incurred by the employee enforcing" his or his reimbursement rights, promptly resolve in writing any disputed use calculations.
For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
See also:
Tim Bowles
June 10, 2022
There are three Labor Code sections that direct such disclosures. Two have specified deadlines, one of those with limited room for extension. Those two also impose $750 each for non- or late-compliance.
Akin to a speeding ticket, a former (or current) worker's demand to see his employment records will likely come in due time to any employer. If the request arrives on an attorney's letterhead, it will probably seek to create pressure by citing deadlines imposed by one or another California laws. Knowing the score - including ability to see when that lawyer is overreaching - can reduce the stress of the process.There are three Labor Code sections that direct such disclosures. Two have specified deadlines, one of those with limited room for extension. Those two also impose $750 each for non- or late-compliance.
Labor Code 226, Pay Records Disclosure: This section specifies the minimum nine items an employer must include in an earnings statement either "semimonthly or at the time of each payment of wages." Section 226(b) requires employers to permit employee access to these records.
Section 226(c) provides that an employer who receives a current or former employee's written or oral request to inspect or receive a copy of such records shall comply with the request as soon as practicable, but no later than 21 calendar days from the date of the request (emphasis supplied).
Section 226(f) states that employer failure to meet that deadline entitles the employee or the Labor Commissioner to recover a $750 penalty from the employer.
Labor Code 432, Signed Documents Disclosure: This section directs an employer to provide an employee or applicant on request a copy of any document he/she has signed "relating to the obtaining or holding of employment." A signed employment application or I-9 form are examples. This statute does not specify a deadline for disclosure or a penalty for non-disclosure.
Labor Code 1198.5, Personnel Records Disclosure: This section affords "every current and former employee, or his or her representative [authorized in writing]... the right to inspect and receive a copy of the personnel records that the employer maintains relating to the employee's performance or to any grievance concerning the employee."
A document "relating to" performance or any grievance "concerning" the employee potentially covers a broad scope. Section 1198.5(h) only specifies records that do not have to be disclosed, including for example ● records relating to the investigation of a possible criminal offense; ● letters of reference; and ● ratings, reports, or records that were (i) obtained prior to the employee's employment, (ii) prepared by identifiable examination committee members, or (iii) obtained in connection with a promotional examination.
Section 1198.5(b)(1) requires the employer to make those records available for inspection no later than 30 calendar days from the date the employer receives a written request, unless the parties agree in writing to extend the date to no more than 35 days (emphasis supplied).
Section 1198.5(c)(3)(B) provides that if the requesting former employee was terminated for a violation of law or "an employment-related policy, involving harassment or workplace violence," the employer may comply with the request ● by making the records available at an offsite location "within a reasonable driving distance of the former employee's residence" or ● by providing a copy of the records by mail.
Section 1198.5(k) states that failure to meet the deadline entitles the employee or the Labor Commissioner to recover a $750 penalty from the employer.
Section 1198.5(d) provides that an employer is required to comply with only one such request per year from a former employee.
● An employer should have written protocols and designate a well-trained manager to handle such requests;
● The above points are not inclusive. The designated manager should be thoroughly familiar with all statutory provisions;
● Promptly address and document full compliance with requests as required by the statutes. Note the varying deadlines under section 226(c) and 1198.5(b)(1) depending on the type of record and the technical rules for extension; and
● Consult with experienced legal counsel to assist as appropriate. Many such requests are best handled through such counsel.
For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
See also:
Tim BowlesJune 3, 2022
On investigating a worker's death at Valero Refinery of Benicia,Cal/OSHAcitedthe refinery and three contractors $1,753,375 for willful and serious safety violations. Serious violations are hazards posing "a realistic possibility . . . of death or serious physical harm." Willful violations are failures to "remediate a known hazard" or knowing violations of the law.
On investigating a worker's death at Valero Refinery of Benicia, Cal/OSHA cited the refinery and three contractors $1,753,375 for willful and serious safety violations. Serious violations are hazards posing "a realistic possibility . . . of death or serious physical harm." Willful violations are failures to "remediate a known hazard" or knowing violations of the law.
The agency found that lack of oxygen in an enclosure caused a worker sent in for cleaning to lose consciousness and succumb in spite of revival efforts. It concluded an argon gas-leaking welding torch left in the space caused the fatal oxygen deficiency.
Cal/OSHA Chief Jeff Killip stated: "Working in confined spaces is extremely dangerous, as is working with argon. The employers involved had a responsibility to keep their workers safe. The first step to preventing a completely avoidable fatality is to identify hazards before a worker enters a confined space." Confined spaces include such places as "tanks, silos, pipelines, sewers, storage bins, drain tunnels and vaults," or any with similar conditions.
Cal/OSHA's confined space guide provides information on types of accidents and guidance on how to provide educated employees and safe confined workspaces.
Take-Away: Safety is a key duty of employers, especially when putting their employees into dangerous conditions. "Safety first" is not just a catchy phrase, but something all employers must ensure.
For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
See also:
Helena Kobrin
May 27, 2022
Bald men - at least in the United Kingdom - can seek recourse against unwelcome workplace jokes or taunts about their follicly-challenged appearance.
Bald men - at least in the United Kingdom - can seek recourse against unwelcome workplace jokes or taunts about their follicly-challenged appearance.
The claimant asserted that his supervisor at The British Bung Company, a wooden cask closures manufacturer, called him a "bald c*nt." Although he claimed no issue with the expletive, the worker did not appreciate the comment on his appearance.
Linking baldness to gender (male), the court held the remark crossed the line, creating an intimidating, hostile, degrading, humiliating, or offensive environment.
Writing for the three-judge panel, Judge Brain likened such unwanted remarks on male appearance to comments on the size of a woman's breasts. "There is a connection between the word "bald" on the one hand and the protected characteristic of sex on the other... [A]s all three members of the Tribunal will vouchsafe, baldness is much more prevalent in men than women. We find it to be inherently related to sex. (In contrast, we accept that baldness affects [predominantly] adult males of all ages so is inherently not a characteristic of age)."
Under California and federal law, sexual harassment is a form of unlawful workplace discrimination, singling out individuals due to gender. Unwelcome and inappropriate conduct is illegal whether aimed at men, women, or individuals of the opposite or same sex. The harassment does not require proof of sexual desire.
Take-Aways:
For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
See also:
Cindy Bamforth
May 26, 2022