The Limits to Dress Code and Appearance Standards

To promote business image, California employers may dictate reasonable workplace dress and grooming standards. Yet, managers cannot be dictators if certain protected worker preferences are in play.

Policy may require employees to dress in a neat and well-presented manner and to report to work well-groomed and clean. Employers can require uniforms and direct their good maintenance and cleaning. They may also prohibit or limit use of perfumes or other scented body lotions for those working in physical proximity with others. Policy may bar displayed tattoos and body piercings.

Yet, written standards must also recognize and management must seek to reasonably accommodate certain individual conditions or choices protected by law, including:

● physical disability as affects dress or appearance;

● employee gender identity or gender expression;

● protected hairstyles (as racially based, including braids, locks, and twists); and

● sincerely held religious beliefs, observances or practices.

Take Aways: Company policy can and should direct dress and grooming standards supporting that business's commercial values while recognizing the prerogative of workers to seek and maintain protected exceptions. Managers must have sufficient training and skill to address, document and resolve requests for reasonable accommodation.

See also:

· Hairstyle Discrimination Banned - New California Law Takes Effect January 1, 2020(July 11, 2019)

· Dress for Success - How to Address the Employee Dress Code (April 29, 2018)

· New Transgender Rights in the Workplace (Expanded California Regulations Effective July 1, 2017) (July 21, 2017)

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

Tim Bowles
May 20, 2022

Employer Hit with $800,000 "Wage Theft" Citation

The California Labor Commissioner has again looked under the hood of the car wash industry, citing Torrance Car Wash more than $800,000 for wage theft violations affecting 35 workers, including minimum wage, overtime and meal and rest breaks.

Investigators found the employer failed to pay workers for all hours worked, required on-time workers to wait before punching in, and did not provide required meal and rest breaks.

In an April 27, 2022 release, the Commissioner stated: "The business owners violated labor laws to avoid paying workers the wages they were owed and refused to cooperate with our investigation by withholding documents during our inspection. My office had to get additional warrants to conduct our inspection of the business."

The Commissioner's office was prompted to investigate after receiving a referral from the CLEAN Car Wash Campaign, a pro-union coalition that supports car wash workers.

Take-Away: Citations of this magnitude can destroy a business. Employers must ensure continuing compliance with California's wage laws.

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

See also:

• Cautionary Tale Episode 55 - Chickens Roosted - Foster Farms Cited $3.7M for Paid Pandemic Sick Leave Violations (May 5, 2022)
• Cautionary Tale Episode 44 Fined Dining - Restaurant Must Eat $1.6M Bill for Labor Violations (August 26, 2021)
• Cautionary Tale Episode 26 - Playa Vista Car Wash Takes a Dunking for $2.36 Million "Wage Theft" (May 2, 2019)

Cindy Bamforth
May 18, 2022

Employer Liable for Imposing Worker Birthday Celebration

Those who dread that mass of co-workers annually aiming a horrible rendition of "happy birthday" in his or her direction can now take heart. They are not alone. A Kentucky jury has awarded a man $450,000 for his employer's alleged failure to prevent a panic attack triggered by an at-work celebration of his birthday.

In Berling v. Gravity Diagnostics, Kenton County Circuit Court No. 19-CI-01631, plaintiff claimed an anxiety disorder protected against disability discrimination by Kentucky law. A lab technician for employer Gravity Diagnostics, he alleged that a few days in advance of his birthday he told the office manager of his condition and asked the company to excuse him from its practice of throwing parties for its employees.

Mr. Berling asserted that on August 7, 2019 the company nevertheless permitted a lunch room birthday celebration for him, triggering an attack and forcing him to abruptly leave the office and spend the meal time in his car. He further alleged that: ●he texted the manager from there, protesting her failure to accommodate his request; ●management criticized him the next day, triggering another panic attack; and ● the company then terminated him over these events.

Similar to federal and California standards, Gravity Diagnostics was obligated to consider and provide reasonable accommodations to disabled workers and to refrain from retaliating against those asserting such rights. After a two-day trial, the jury found: ● plaintiff was protected by Kentucky anti-discrimination law; ● he was able to perform the essential functions of his position with or without reasonable accommodation; and ● he suffered an adverse employment action because of that disability. The $450,000 included $120,000 in lost wages and benefits; $30,000 in lost future wages; and $300,000 for past, present and future mental pain and "loss of self-esteem." The judge also ruled Mr. Berling was entitled to his reasonable attorney fees.

The California Fair Employment and Housing Act (FEHA) requires employers of five or more employees to provide reasonable accommodation for individuals with a physical or mental disability to apply for jobs and to perform the essential functions of their jobs unless it would cause an undue hardship.

Employers must initiate an "interactive process" when an applicant or employee requests reasonable accommodation for a claimed disability. The employer must also offer to initiate an interactive process when management becomes aware of the possible need for an accommodation. This awareness might come through a third party, by observation, or because the employee has exhausted leave benefits but still needs reasonable accommodation.

Take-Away: The interactive process to determine whether reasonable accommodation is feasible should be well documented, demonstrating an individualized assessment of both the job and the specific physical or mental limitations of the individual. As the Berling case demonstrates, consultation with experienced legal counsel is a good idea here.

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

See also:

• Know Your Boundaries, New Employer Restrictions on Hiring Notices and Interviews (June 12, 2020)
• Time's Up, Extended: Longer Three-Year Deadline For Initiating Discrimination Claims (January 10, 2020)
• Preventing Workplace Discrimination - Accommodating Disabilities, Made Simple - New Guidelines Package Available for California Employers (August 24, 2017)

Tim Bowles
May 14, 2022

Bill Would Add "Family Responsibilities" as Protected Class

Pending Assembly Bill (AB) 2182 would add "family responsibilities"-- "the obligations of an employee or applicant to provide care for a minor child or care recipient" - to the ever-growing list of classes protected from discrimination by employers with five or more employees under the Fair Employment and Housing Act.

Under proposed new Government Code 12940.5, unless there is an undue hardship, employers would have to make accommodations for employees to provide such care, including:

• Time off (with use of available paid options);
• Temporary or part-time work, schedule change, or switching time with other employees;
• Being excused from mandatory overtime;
• Temporary change in job duties;
• Working remotely;
• Allowing employee to communicate by phone with child, care recipient, or care provider;
• Excusing employee from tardiness or attendance policies.

Employers that would like to provide feedback on this bill can contact their Assembly members.

Take-Away: Employers of five or more should watch this blog or signup for our E-letterfor information on this potential law and will need to accommodate employees with family responsibilities should it pass.

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

See also:

• High Time Off: Discrimination Protections Pending for Cannabis Users (April 22, 2022)
• Cautionary Tale Episode 49 Mom Discrimination: Black Employee Charges Walmart's Unequal Treatment (March 3, 2022)
• Workplace Discrimination Prevention: California's Fair Employment And Housing Act, A History (March 26, 2021)

Helena Kobrin
May 11, 2022

Cal/OSHA Further Revises Testing and Prevention Standards

California employers are still not out of the heavily-regulated pandemic woods. On April 21, 2022, the Occupational Safety and Health Standards Board approved the third amendment to Cal/OSHA's COVID-19 Prevention Emergency Temporary Standards (ETS).

Effective May 6, 2022 through December 31, 2022, the revised ETS applies to most California workers not covered by the Aerosol Transmissible Diseases standard.

Important revisions to the current ETS include:

• Testing:
  • COVID-19 tests may now be self-administered and self-read if another means of independent verification can be provided (e.g., a time-stamped photograph of the results); and
  • Employers must make testing available to all symptomatic employees regardless of vaccination status.
• Face Coverings:
  • Removes the requirement that face coverings must not let light pass through when held up to a light source;
  • Permits all employees, regardless of vaccination status, to request (at no cost) and wear face coverings/respirators at work; and
  • No longer requires any masks indoors except during certain outbreaks or as otherwise required by CDPH or local health departments.
• Fully-Vaccinated: No longer differentiating between vaccinated and unvaccinated status, deferring instead to CDPH's isolation and quarantine criteria, i.e., all positive cases must isolate for at least five days (or longer depending on symptoms and/or subsequent test results), and no asymptomatic close contacts need to quarantine if they test negative within three to five days after last exposure.
• Returned Case: New term for someone back at work during 90-day recovery period from initial onset or positive test, for whom employer need not make further testing available.
• Cleaning and Disinfecting Procedures: Removal of most of these mandatory requirements (although employers should continue to adhere to CDC guidelines).
• Physical Distancing: Removed from the ETS except during certain outbreaks.
• Exclusion/Return to Work Criteria: Refers to the CDPH and/or local public health departments for "close contact" return-to-work timeframes.

Important ETS provisions that remain unchanged include requirements to:

• Establish, implement and maintain an effective written COVID-19 Prevention Program (CPP);
• Effectively train employees to prevent the spread;
• Relay certain COVID-19 benefits information to affected employees;
• Promptly deliver written notifications in response to a workplace COVID-19 case and/or outbreak; and
• Provide "exclusion pay" for certain positive cases and close contacts who have been excluded from work.

Cal/OSHA will soon publish updated FAQs and will presumably issue an updated model COVID-19 Prevention Program in English and Spanish.

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)
• What's New in 2022 - Sewing Up Pandemic Conflicts (January 14, 2022)
• What's New in 2022 Going the Distance - Cal/OSHA Updates Emergency Temporary Standards (December 22, 2021)
• Easy Does It Take Two- Cal/OSHA Revises Written COVID-19 Prevention Program(July 15, 2021)

Cindy Bamforth
May 6, 2022

Foster Farms Cited $3.7M for Paid Pandemic Sick Leave Violations

The California Labor Commissioner has cited Foster Farms and its staffing agencies $3,783,800 for failing to notify nearly 3,500 temp workers of COVID-19 supplemental paid sick leave benefits (SPSL).

Employers of more than 25 must provide written notice to all full-time employees, such as the Labor Commissioner's model notice in English and Spanish, of their rights to receive pandemic-related SPSL. See, 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).

In an April 26, 2022 release, the Labor Commissioner stated: "Employers who contract with staffing agencies have a joint responsibility to protect the health of their workers. Employers are obligated to ensure that employees are made aware of sick leave benefits intended to protect workers, their families and the public from the spread of COVID-19."

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

See also:

• Cautionary Tale Episode 51 Former Workers Get First Shot-3.3 Million Reasons to Hire Back Pre-Pandemic Hospitality Employees (March 11, 2022)
• Cautionary Tale Episode 47 Covid-19 Required Benefits Take Two: El Super Grocery Store Citations Tripled (October 29,2021)
• Cautionary Tale Episode 40 Big Stick Compliance Cal/Osha Fines Numerous Businesses for Covid-19 Violations (March 4, 2021)

Helena Kobrin
May 5, 2022

Workplace Policy Handbook & Forms for 2022

Clear, written employee policies are the foundation for workplace legal compliance and productivity. Prolonged pandemic conditions and California's earned reputation as a litigation hotbed underscore the importance of sound, across-the-boards written rules and protocols.

Now is the time to implement or upgrade your policies. We offer "hire-to-fire" forms as well as a comprehensive employee manual.

Updated for 2022, our model forms include:

• Workforce COVID protocols;
• Vaccination requirements and procedures;
• Paid sick leave benefits under California directive;
• Employment application and accompanying job description template(including key requirements for Americans with Disabilities Act compliance and California's constitutional privacy protections);
• Pre-employment protocols (properly positioning the process to meet changing legal requirements);
• Employment agreement (including confidentiality/non-disclosure of company trade secrets);
• Alternative dispute resolution agreement (also properly setting terms to match changing standards for arbitration in lieu of court action);
• Meal and rest period acknowledgments (confirming employer provision of required breaks); and
• Termination policy, checklist and standard release (to be applied as appropriate for full transition and greater protection against later, preventable suits).

Our comprehensive model employee handbook, 2022 edition, includes (but is not limited to):

• Conditions of company employment, including mutual "at will" termination rights;
• Discrimination and harassment, prevention and handling;
• Employee compensation;
• Employee benefits;
• Employee job performance;
• Limits of employee privacy, including valid employer access to employee-maintained databases and social media guidelines;
• Paid and unpaid leaves;
• Workplace health and safety; and
• Drug and alcohol policy, including testing and violations procedures and standards.

DON'T WAIT
CONTACT US TO ORDER NOW

To order or for more information, contact Office Manager Aimee Rosales at 626.583.6600 or email her at officemgr@tbowleslaw.com.

April 29, 2022

Four-Day Workweek Law Pending for Large Employers

California Assembly Bill (AB) 2932 seeks to redefine the "workweek" from 40 hours to 32 hours for employers with more than 500 on payroll.

Under existing California law, employers must pay whichever total overtime hours are greater over the seven-day workweek -- weekly (over 40) or cumulative daily (over eight/day).

The proposed new law would require affected employers to pay overtime after 32 work hours/week and prohibits regular pay rate reduction in response.

If enacted, California would be the first state in the U.S. to adopt a less-than-40-hour workweek, joining countries such as Australia (38), Belgium (38) and France (35).

In opposition, the California Chamber of Commerce stated: "California is one of the only states with the eight hours per day requirement. The remaining states all comply with the federal Fair Labor Standards Act (FLSA), which only requires overtime after 40 hours in a week. Now, California is proposing to be the only state to differ from the FLSA in two ways: both the daily eight-hour requirement and lowering the 40-hour weekly overtime threshold to 32 hours. That is a minimum 10% increase in wages per employee per week."

Take-Aways:
We'll continue to monitor this bill. California employers of all sizes must continue to properly track and pay daily and weekly overtime. Those concerned over the prospective change should let their legislators know.

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

• Management's Best Foot Forward (February 10, 2022)
• Cautionary Tales Episode 24 - Unpaid Wages and Attempt to Evade Consequences Result in Seizure of Owners' Assets (January 16, 2019)
• The Basics of Overtime - Five Rules in California (April 27, 2018)

Cindy Bamforth
April 28, 2022

Discrimination Protections Pending for Cannabis Users

AB 2188, pending in the California Assembly, seeks to prohibit employers, other than those in building and construction trades, from discriminating against workers for:

• off-the-job cannabis use; and
• non-psychoactive cannabis metabolites found in hair, urine, or other bodily fluids in employer-mandated drug tests.

The proposed law does not protect employees stoned on-the-job, thus largely preserving an employer's right to maintain a drug-free workplace, including by testing required under federal law (e.g., in the transportation industry). However, a long-list of business groups, including the California Chamber of Commerce, oppose the measure for limiting available screening tools and effectively barring pre-employment screening.

While the Labor and Employment Committee cut the bill back substantially earlier this month, it continues its way through the legislature.

Take-Aways: Stay tuned. For now, using traditional drug testing methods at legally-permitted times, employers can continue to decline employment to marijuana-using applicants and to exclude drug-impaired workers from the workplace. Constituents may of course make their AB 2188 concerns known to their legislators.

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

See also:

• Management's Best Foot Forward - Workplace Policy Handbook & Forms for 2022(February 18, 2022)
• Drug- and Alcohol-Free Workplace Policies: No Exceptions for Cannabis (September 3, 2021)
• Banning Weed in the Workplace: California Employers May Maintain Drug-Free and Alcohol-Free Policies (January 19, 2018)

Helena Kobrin
April 22, 2022