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:

• Businesses are under no obligation to classify new hires in any manner;
• Such intro periods – if correctly defined in writing – will not undermine employment at-will;
• As such, once through that probationary/intro period, the employee can still be terminated at any time, with or without advance notice and for any legal reason or no reason;
• Employers do not insulate themselves against discrimination claims by terminating workers during probationary periods; and
• Employees may receive unemployment benefits even if let go during the introductory period.

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
• 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:

• Nailing Goodbye – Employee Terminations Dos and Don’ts (September 15, 2021)
• Need For Written Employment Agreements – Well-Drafted Contracts Eliminate Uncertainty and Ambiguity (March 30, 2018)

Cindy Bamforth
June 17, 2022

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
• 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:

• Implement and maintain written employment agreements and workplace policies that unequivocally establish at-will employment;
• Train managers not to promise job security or make any other statements that contradict at-will employment; and
• Purchase and apply written policies via a comprehensive, updated, and well-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:

• Proper Fashion Policing – The Limits to Dress Code and Appearance Standards (May 20, 2022)
• “At Will” Employment – A Three-Minute History (December 18, 2020)

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.

Labor Code 2802 directs employers to compensate a worker for “all necessary expenditures 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:

• Are Shoes Reimbursable Business Expenses? (August 6, 2019)
• Wage Deductions – When California Employers May Subtract from Earned Compensation (August 26, 2016)
• Employee Road Trips and Other Work Related Expenses – California Businesses Must Reimburse for Employment-Related Use of Personal Vehicle, Phones and More (July 23, 2012)

Tim Bowles
June 10, 2022

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 that work demands cause an employee to miss one or more off-duty rest breaks.

Until recently, courts have treated these premiums as penalties not subject to certain wage laws. That changed with the California Supreme Court’s May 23, 2022 decision in Naranjo v. Spectrum Security Services, Inc. The court concluded that missed break premiums:

• Are wages;
• Must be included on wage statements required under Labor Code 226;
• If not included, are subject to penalties under Labor Code 226(e) for incomplete or inaccurate wage statements; and
• Subject an employer to waiting time penalties under Labor Code 203 if not timely paid on employment termination.

Violations of Labor Code 203 must be “willful” and violations of Labor Code 226 must be “knowing and intentional” to trigger respective penalties. Thus, in theory, a company that can establish its management was unaware of breaks missed by production demands could defeat such claims. In practice however, such claimed unawareness can be a tough sell against an employee’s assertions that work kept her or him from one or many full meal or rest periods.
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Take-Away: Employers should:

• Issue California-compliant meal and rest break policies and encourage workers to take advantage;
• Adopt a protocol to obtain regular written confirmations of no such missed periods;
• Encourage employees to promptly report in writing any breaks missed;
• Document the resolution of such claimed missed periods, promptly paying the premium owing;
• Ensure payroll personnel, including any outside vendor, includes such premiums in pay stubs; and
• Ensure all unpaid break premiums are included in an employee’s final pay.

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

See also:

• Please: Document Workplace Meal Breaks: Require Employees to Clock Out and Back In on Their Meals (June
• Square Meal Is The Deal: California Supreme Court Prohibits Meal Break Time Rounding (April 1, 2021)
• Required Meal Periods and Rest Breaks Revisited: Off-Duty Time During a California Work Day (April 12, 2018)

Helena Kobrin
June 3, 2022

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:

• For the Record - Sound Management Practices For Personnel Documentation (August 14, 2020)
• What’s New for 2019: California’s Clarification on Employee Access to Their Payroll Records (November 28, 2018)
• Paperless Paystubs - Do They Comply with California Wage Statement Laws? (February 28, 2018)
• Overlooked Paystub Requirements Can Lead to Trouble (February 23, 2018)
• Payroll Record-Keeping 101 (May, 2016)

Tim Bowles
June 3, 2022

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-Aways:

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:

• Cautionary Tales Episode 32- Protect Workers from Injury – It’s the Law – and the Right Thing to Do (July 9, 2019)
• Safety Safeguarded- Required Injury and Illness Recordkeeping and Posting in California (March 8, 2019)
• Cautionary Tales Episode 23-Construction Accidents Kill Two with Resulting Large Fines against the Employers (December 28, 2018)

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.

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:

• All workers, especially supervisors, should avoid making gratuitous, insulting or offensive comments on anyone’s personal appearance.
• Regardless of the validity of any sexual harassment claim, the employer’s response must comply with applicable anti-discrimination and anti-retaliation laws. If not, the company further jeopardizes its legal position.
• California law also makes it unlawful to fail to take all reasonable steps necessary to prevent discrimination and harassment.
• Anti-harassment training and zero tolerance policies are also essential to ward off and eradicate inappropriate workplace conduct. Every two years, employers with five or more on payroll have to provide at least two hours of classroom or other effective interactive training and education regarding sexual harassment to all California employees. Contact us for more information, pricing or to schedule your workforce training at (626) 583-6600 or officemgr@tbowleslaw.com.

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

See also:

• Cautionary Tale 56 party pooper payoff - employer liable for imposing worker birthday celebration(May 14, 2022)
• Prevention medicine - essential written policies for the California workplace(April 22, 2022)

Cindy Bamforth
May 26, 2022

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)

Tim Bowles
May 20, 2022

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-Aways:

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