Combatting discrimination, the California Department of Fair Employment and Housing (DFEH) investigates and mediates or prosecutes complaints under the state’s Fair Employment and Housing Act (FEHA).

The DFEH also enforces state civil rights laws under:

• The Ralph Civil Rights Act (deterring “hate violence”);
• The California Trafficking Victims Protection Act (prohibiting human trafficking);
• The Unruh Civil Rights Act (prohibiting businesses and public accommodations from denying services to or discriminating against individuals based on a protected characteristic such as race, gender, disability or national origin);
• The Disabled Persons Act (providing disabled individuals the same full and free access to public facilities and places); and
• Civil Code section 51.9 (prohibiting sexual harassment by a person who has a business, service or professional relationship with another, such as doctor-patient or lawyer-client).

To increase awareness of its mission and to better enable the public to access its services, effective July 1, 2022, the DFEH has been renamed the Civil Rights Department (CRD).

The CRD is the largest state civil rights agency in the United States. It is empowered “to protect the people of California from unlawful discrimination in employment, housing, businesses, and state-funded programs, and from bias-motivated violence and human trafficking.”

Through https://calcivilrights.ca.gov the CRD offers updated website content, posters and brochures.

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

See also:

• Cautionary Tale Episode 54 - Speed Bump - California Sues Tesla for Race Discrimination and Harassment (April 15, 2022)
• What’s New in 2022 -- Peace but No Quiet – California Limits Confidentiality on Settlement of Workplace Discrimination Claims (October 22, 2021)
• Abolishing Workplace Bigotry: A Work in Progress (March 5, 2020)

Cindy Bamforth
September 1, 2022

In recent years, disability discrimination suits have skyrocketed from the visually impaired alleging online businesses deprive their access for lack of special reader features.

In a win for such targeted companies, an appeals court has ruled against the blind plaintiff in Martinez v. Cot’n Wash, Inc, finding Cot’n Wash’s website did not violate California’s Unruh Act because (a) any lack-of-access features was unintentional; and (b) the federal Americans with Disability Act did not apply to online-only enterprises.

Disabled persons are entitled to be free from discrimination. Unfortunately, however, a few mercenary plaintiffs’ law firms have attempted to unreasonably extend this legitimate protection by filing dozens of suits against companies for persons who often never would have sought online patronage but for their desired plaintiff status.

While the Martinez decision eventually could be reversed by a higher court, for now California online-only businesses not engaged in deliberate discrimination against disabled users have a viable defense against such claims.

Take-Aways:

• Using the latest version of Website Content Accessibility Guidelines (WCAG), company web designers should build in features that accommodate disabled public access. Subscription to compliance vendors such as accessiBe can enable page-by-page icons for such access features and regular updates; and
• Companies facing legal demands to rectify website accessibility should engage skilled lawyers familiar with these ongoing issues.

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

See also:

• Who Lurks About Your Website? – Lawyers are Trolling for Disability Access Claims (September 3, 2021)
• Man’s Best Friend: How to Handle Customers’ Service Animals (May 24, 2018)
• Don’t Flunk The Reasonable Accommodation Test – Compton School District Failed to Accommodate Disabled Teacher (May 9, 2018)

Helena Kobrin
Tim Bowles
August 23, 2022

Improper conflicts of interest occur whenever employees are involved in circumstances dividing their loyalties between the employer’s best interest and the employee’s or a third party’s.

Although some conflicts are legally protected, such as employee interactions with labor organizations, others, such as working simultaneously for a direct competitor, are not.

Another less obvious conflict of interest can occur when a manager wishes to concurrently romance a subordinate co-worker.

Dating a coworker can also potentially expose employers to allegations of sexual harassment, sexual favoritism (a form of sexual harassment), or discrimination. However, if an employer interferes improperly, it may incur privacy invasion claims.

While some employers attempt to avoid claims by banning all workplace dating, this may venture too far into personal matters. To balance the interests of all concerned, companies should consider a policy that (a) prohibits any such relationships that might present a conflict of interest, such as a supervisor dating a subordinate; and (b) defines the parameters of workplace romances.

If a supervisor and subordinate wish to date, the company can and should request one of the individuals to transfer to another division to avoid potential harassment claims if the relationship should ever sour.

Management is also within its rights for the couple to confirm mutual consent by a written “love contract” defining the parameters of such a relationship.

Policy elements can include:

• Broad explanation or overview of prohibited conflicts of interest;
• The requirement to discuss the appropriateness of certain “side jobs” with management;
• The requirement for a supervisor to immediately notify the company of a consensual supervisor-subordinate romantic relationship;
• Company prerogative to transfer or lay off one or both of the individuals involved in the romantic relationship; and
• A written acknowledgment of the consensual nature of the relationship and their respective post-relationship duties if and when they stop dating each other.

Take-Aways:

Implement and regularly review a comprehensive, clearly written handbook with an updated and California-compliant conflicts of interest 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:

• Workplace Discrimination Prevention: California’s Fair Employment and Housing Act, A History (March 26, 2021)
• Cupid’s Arrows Are Flying – How to Regulate Workplace Romances (February 13, 2018)

Cindy Bamforth
August 19, 2022

California’s Paid Family Leave (PFL) is a temporary disability program administered under the state’s Employment Development Department (EDD) to provide wage replacement benefits when a person must be off work in certain circumstances.

Employees eligible for PFL benefits may receive up to eight weeks of state-funded partial wage replacement for leaves of absence to care for a seriously ill family member, bond with a new child, or participate in a qualifying military event. Small businesses of up to 100 employees may apply for grants up to $2,000 per employee on PFL to offset the increased costs associated with the leave.

The EDD -- overseeing unemployment and disability benefits, payroll tax collection, and other workplace matters -- has also recently published its updated English version of the Paid Family Leave pamphlet (DE 2511, REV 20, dated 3/22).

The revised pamphlet summarizes the paid family leave benefits program, eligibility criteria, and the benefits application process and contains simplified instructions regarding the leave.

The EDD will soon release the pamphlet’s Spanish version.

All California employers must distribute the PFL pamphlet to all new hires and qualifying employees taking time out from work for a covered reason.

Employers should begin using this new version by downloading it for free from the EDD’s website or purchasing it from the California Chamber of Commerce or other organizations.

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

See also:

• California Paid Family Leave Overview - Is California’s Paid Family Leave a Protected Leave of Absence? (August 3, 2018)
• Changes to California Paid Family Leave Pamphlets (July 16, 2015)
  

Cindy Bamforth
August 12, 2022

Wage-related lawsuits are a booming California industry. An employer’s “ounce of prevention” must include continual creation and maintenance of complete and accurate pay records. Even if a former worker’s allegations are groundless, deficient recordkeeping leaves a company wide open to wage “theft” claims – e.g., off-the-clock unpaid work hours; meal period deprivation – that can be very difficult to disprove.

For each employee, Labor Code 1174 and section 7 of all California wage orders direct employers to securely maintain these records at a central location for at least four years:

• Full name, home address, occupation and social security number
• Birth date, if under 18 years, and designation as a minor
• Time records showing when the employee begins and ends each work period
• Meal periods, split shift intervals and total daily hours worked. “Meal periods during which operations cease and authorized rest periods need not be recorded”
• Total wages paid each payroll period, including value of board, lodging, or other compensation actually furnished to the employee
• Total hours worked in the payroll period and applicable rates of pay; and
• When a piece rate or incentive plan is in operation, piece rates or an explanation of the incentive plan formula shall be provided to employees. Employers must maintain an accurate production record supporting any employee piece pay.

All required records “shall be in the English language and in ink or other indelible form, properly dated, showing month, day and year.” An employee’s records shall be available for inspection by the employee upon reasonable request.

Penalties for failure to keep and provide accurate and complete payroll records include, but are not limited to, $50 initial violation per employee, per pay period and $100 each subsequent violation to $4,000 maximum/employee (Labor Code 226(e)(1)) and another $250 initial violation per employee, $1,000 subsequent violation per employee (Labor Code 226.3).

Additional references: U.S. Department of Labor Fact Sheet #21: Recordkeeping Requirements under the Fair Labor Standards Act (FLSA); California Division of Labor Standards Enforcement (DLSE) Enforcement Policies and Interpretations Manual, August, 2019, section 4 “Time Record Requirements”; and Employment Development Department (EDD) 2020 California Employer’s Guide, p. 78, “Recordkeeping.”

Take-Aways:

Taking the time and care to compile and preserve complete work time and pay records for every employee isn’t just a good idea, it’s a vital aspect of business survival 101.

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

See also,

• Keeping Time – California’s Standards for Tracking Workplace Hours (April 1, 2022)
• Paperless Paystubs – Do They Comply with California Wage Statement Laws? (February 28, 2018)
• Correct Pay Stubs Save Bucks – Learn California’s Specific Pay Stubs Requirements to Avoid Penalties (May 3, 2018)
• Payroll Records-Keeping 101 (May 11, 2016)

Tim Bowles
August 12, 2022

Notwithstanding the decriminalization of marijuana use in this state, California employers are within their rights – and right minds – to establish and enforce strict rules on employee use, possession, and/or sale of illegal drugs, controlled substances and alcohol.

Policy elements can include:

• Requirement that all employees be fully sober and straight throughout their entire workdays
• Clear definition of “illegal drugs” or “controlled substances” to include recreational marijuana, medical marijuana, or any substances containing THC (marijuana’s mind-altering ingredient)
• Company prerogative to immediately terminate an employee for violations, including while on company or customer premises, while operating any vehicle on company business, or while operating a company-owned or -leased vehicle at any time
• Similar prerogative to terminate an employee for an employee’s guilty plea or criminal conviction for illegal sale or possession of any controlled substance
• For an employee arrested on drug-related charges, company option to suspend without pay until the charges are resolved
• Provision for the legal use of prescribed drugs or over-the-counter medicines so long as they do not adversely affect the employee’s ability, job performance, or the safety of the employee or others
• Rule that if an employee is aware that his/her use of permitted medication adversely affects his/her ability, job performance, or the safety of the employee or others, he or she must inform the supervisor of this condition prior to beginning work
• Caution that if the employer, in its discretion, finds the ingestion of permitted substances appears to be preventing an employee from performing his/her work, with or without reasonable accom­modation, company may direct that employee to see a doctor at its expense; company may then direct the employee to take a leave of absence without pay if doctor judges the legal substance is preventing safe and effective work performance
• Clear criteria for company-required drug and alcohol testing in compliance with California’s differing standards for pre-hire and post-hire circumstances. For example, as long as an employer applies the policy consistently, it may condition offers of employment on applicants passing a substance test. Rules for required post-hire testing must match this state’s directives balancing individual privacy with company necessity to protect the health and safety of its workforce and the public; and
• Notice that an employee's refusal or failure to submit to mandatory testing may lead to disciplinary action, including termination.

Take-Aways:

Ensure an updated and California-compliant drug and alcohol policy as part of a comprehensive, clearly written handbook.

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 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:

• Drug And Alcohol – Free Workplace Policies – No Exception for Cannabis (September 3, 2021)
• Banning Weed in the Workplace – California Employers May Maintain Drug- and Alcohol-Free Policies (January 18, 2018)

Tim Bowles
August 5, 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-Aways:

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:

• Employee Training Programs - When Employers Must Compensate for Worker Education. (March 29, 2011)

Helena Kobrin
August 5, 2022

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

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-Aways:

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