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)
• Progressive Discipline in The Workplace – Nice Idea, But Don’t Promise (July 16, 2012)

Cindy Bamforth
July 20, 2022

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

Law Offices of Timothy Bowles
July 20, 2022

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

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 normally satisfy 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-Aways:

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

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)

Cindy Bamforth
July 8, 2022

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:

• 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

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:

• Allow employee participation in lawful political activities;
• Underscore that worker political preference or advocacy is not an employment condition regardless of affiliation;
• Employees should only suggest the employer’s political affiliation or endorsement of a particular activity or position after receiving management’s prior written permission;
• Address whether employees may engage in political activities on company time or using company resources;
• Remind employees to abide by other rules and guidelines, such as anti-harassment, anti-retaliation, anti-bullying, and social media policies; and
• Always permit workplace 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 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:

• Live and Let Live – Preventing Political Backlash In the Workplace (October 23, 2020)
• Can’t We All Just Get Along?; Political Speech and the Workplace (October 16, 2018)
• Unlawful Retaliation Defined; Federal Government Publishes Final Enforcement Guidance on Retaliation Claims (September 21, 2016)

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.

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-Aways:

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:

• Square Meal is the Deal – California Supreme Court Prohibits Meal Break Time Rounding (April 21, 2021)
• Wage Calculation 101 – A Guideline for Proper Time Rounding Policies under California and Federal law (August 19, 2016)

Tim Bowles
June 24, 2022

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:

• What’s New in 2022 – California Minimum Wage Rate Increases for January 1, 2022 (November 24, 2021)
• Minimum Wage Laws (January 31, 2020)

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

Helena Kobrin
Daniska Coronado
June 24, 2022