EEOC Sues Chipotle for Sexual Harassment of Teen Workers

The U.S. Equal Employment Opportunity Commission (EEOC) has sued Chipotle, alleging the fast food chain's management failed to investigate and resolve harassment of young female employees severe enough to force two of them to leave their jobs.

As the EEOC describes it:

● In 2019, a service manager at one of Chipotle's Washington state stores began to target a 16-year-old worker with unwelcome sexual comments, touching, and requests for sex. The store's general manager failed to investigate, instead instructing the teen to refrain from an inappropriate relationship with the offender while scheduling her to work a closing shift with that person. The agency asserts the service manager later sexually assaulted that worker and subjected others to harassment; and

● In 2020, Chipotle again failed to take appropriate action at that store on complaints that an employee had commented on the bodies of female co-workers, announcing nicknames like "mama," "sweetheart," and "baby girl." While committing to investigate, Chipotle permitted the alleged harasser to return to the workplace where he angrily confronted those who had complained. The suit contends two workers later quit fearing for their safety.

As the EEOC's regional director put it: "This case involves workers in their teens and early 20s. These are their first impressions they will. . . form about the workplace, and it is devastating when an employer permits sexual harassment to continue despite repeated complaints. We want to send a clear and opposing message: every worker has a right to a workplace free from sexual harassment, and the EEOC will hold employers accountable."

While seeking damages against an employer here, the EEOC also promotes prevention by its Chart of Risk Factors for Harassment and Responsive Strategies on ways managers can detect and head-off such unlawful workplace conduct.

Take Aways: Federal and California law clearly call for zero harassment tolerance no matter the size of the employer. Management must publish and uphold such policy in practice, including regular awareness, prevention and resolution training of supervisors and rank-and-file employees alike.

Our lawyers provide live webinar harassment prevention training for all California employees. Our office also offers California compliant anti-harassment policies within our model handbook, updated for 2022.

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

See also:

• Cautionary Tale Episode 50: Do Something - EEOC Sues Convenience Store Owner for Condoning Sexual Harassment (March 4, 2022)
• Stay in Your Lane: Mandatory Sexual Harassment Prevention Training (February 25, 2022)
• Management's Best Foot Forward - Workplace Policy Handbook & Forms for 2022(February 18, 2022)
• Cautionary Tale Episode 45: Old Boy Kill-Joy- EEOC Sues Employer for Sexual Harassment and Retaliation (September 30, 2021)

Tim Bowles
March 18, 2022

Un-masking Do's and Don'ts

On February 28, 2022, California Department of Public Health (CDPH) updated its face mask guidance. Effective March 1, 2022, CPDH no longer requires masks for unvaccinated individuals in most indoor public settings, although it strongly recommends that all persons, regardless of vaccine status, continue using well-fitting surgical masks or respirators indoors.

Local health jurisdictions may continue to implement additional requirements, and CDPH still requires universal masking in these high-risk settings:

• Public transit;
• Emergency shelters and cooling and heating centers;
• All healthcare settings;
• Correctional facilities and detention centers;
• Homeless shelters; and
• Long term care settings and adult and senior care facilities

Also on February 28, Governor Newsom issued Executive Order N-5-22, suspending the Cal/OSHA Emergency Temporary Standards (ETS) face covering requirement for unvaccinated workers in most indoor workplaces.

However, as stated in the updated ETS FAQs, "other face covering requirements within the ETS remain in place, including provisions requiring face coverings in outbreaks and employer-provided transportation."

Those FAQs also confirm employees "can request face coverings from the employer at no cost to the employee and wear them at work, regardless of vaccination status, without fear of retaliation."

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)
• Cautionary Tale Episode 40 Big Stick Compliance CAL/OSHA Fines Numerous Businesses for COVID-19 Violations (March 4, 2021)

Cindy Bamforth
March 17, 2022

Sexual Harassment Accusers May Opt Out of Forced Arbitration

Narrowing the power of business to keep workplace disputes out of court, the newly enacted federal "Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021" enables employees to disregard otherwise mandatory arbitration and have judges and juries decide such claims.

The law applies only to arbitration agreements entered on or after March 3, 2022.

The Equal Employment Opportunity Commission (EEOC), responsible for federal protections against sex discrimination and harassment, endorses these expanded rights.

The agency's Vice Chair Jocelyn Samuels stated, "Access to justice is critical for robust protection of civil rights. The Ending Forced Arbitration Act offers essential protection for workers who are subject to sexual assault or harassment and will significantly advance the promise of our nation's anti-discrimination laws."

As the EEOC put it, "[a]s the #MeToo movement brought to light, in the worst cases, secrecy can shield serial harassers from accountability and allow them to repeatedly abuse employees. Court decisions and orders make the identity of violators of the law and their conduct public, which can serve to influence behavior and deter sexual harassment and assault from occurring in the first place.

"Some of America's most prominent employers have already voluntarily discontinued mandatory arbitration for sexual harassment claims, and several states have passed laws aimed at restricting mandatory arbitration of harassment claims." California is among those states seeking such limitations on arbitration. See, The Right to Fight, Battle Continues Over Employer-Required Arbitration Agreements (September 24, 2021).

Take Aways: Employers should ensure their arbitration agreements now acknowledge worker options required by this act. As the law is silent on the point, management may choose to revise agreements to require an employee's companion claims to sexual harassment - e.g., racial or national origin harassment - are still to be arbitrated. For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

See also:

● California Prohibits Mandatory Employee Arbitration Agreements (December 18, 2019)
● Employment Arbitration Agreements (December 12, 2014)

Tim Bowles
March 11, 2022

3.3 Million Reasons to Hire Back Pre-Pandemic Hospitality Employees

Some businesses are rebuilding after their Covid-19 contraction. Labor Code 2810.8 requires those in certain industries - hotels or private clubs with 50 or more rooms, event centers, airport hospitality operations and service providers, and companies providing building services, including security, to office, retail, or other commercial buildings - to offer available positions to qualified former, laid-off workers. See Comeback Trail: Hotels, Security Services and Others Must Offer Openings to Pandemic-Affected Former Staff(April 30, 2021).

The Labor Commissioner has cited the Terranea Resort in Rancho Palos Verdes (Terranea) $3.3 million because, upon reopening, it failed to offer newly-available positions to 53 former housekeepers, servers, bartenders, junior sous chefs, and massage therapists laid off because of the pandemic.

The assessment includes $5,300 in civil penalties, $208,582 in interest, and a healthy $3,080,000 in liquidated damages, totaling $3,293,882. The liquidated damages calculation was $500 per day per worker for the duration of the violations, averaging 116 days per person. The Labor Commissioner issued a companion notice to discontinue labor violations, requiring Terranea to offer positions to those former employees who have not received that chance to return.

Labor Commissioner Lilia García-Brower stated: "These workers invested years of service at Terranea and through no fault of their own lost their jobs due to the pandemic. The law makes it clear that workers in the hospitality and services industries must be prioritized to return to the same or similar positions when their former employer reopens for business."

TAKE AWAYS:

• Review our April 30, 2021 blog "Hotels, Security Services and Others Must Offer Openings to Pandemic-Affected Former Staff"
• If you are in one of the covered industries and have newly-available jobs, follow Labor Code 2810.8's requirements for notifying and rehiring laid-off employees before hiring others.

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

See also:

• Cautionary Tale Episode 47 - COVID-19 Required Benefits Take Two - El Super Grocery Store Citations Tripled (October 29, 2021)
• Cautionary Tale Episode 43 - COVID Sick Leave Not Optional - Grocery Store Chain Fined Heavily For Violations (August 20, 2021)
• Workplace Discrimination in a Pandemic - California's Updated COVID-19 FAQs Call for Careful Decision Making (August 5, 2020)

Helena Kobrin
March 11, 2022

EEOC Sues Convenience Stores Owner for Condoning Sexual Harassment

Not every employer understands it can be liable for sexual harassment regardless of whether a manager, employee, independent contractor, or even a customer is the offender.

The federal Equal Employment Opportunity Commission's (EEOC) recently filed suit against Kelley Williamson Company (KW) illustrates an employer's broad responsibilities to prevent, investigate and remedy such abuses.

The EEOC contends that although a store employee and others had complained to management for months about unwanted sexual advances by a male customer, KW violated Title VII of the Civil Rights Act of 1964 by doing nothing to stop the harassment. The suit also alleges that in violation of the Americans with Disabilities Act the store manager shared the victim's private medical information with other, unauthorized personnel.

The EEOC seeks compensatory and punitive damages for the harassed employee as well as other orders to prevent such bad behavior in the future.

The EEOC's Chicago District Director stated:

"This case serves as a reminder that employers are required to make reasonable efforts to stop all sexual harassment of their employees on the job -- including harassment by customers and members of the public. Employers who know their employees are being harassed and don't even try to stop it can be held liable for that harassment under the law."

TAKE AWAYS:

• No matter the accused abuser, always take steps to protect employees from being harassed, whether sexually or otherwise.
• Protect the privacy of employee medical records by securing them in separate files with access only by authorized personnel.

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

See also:

• Stay in Your Lane: Mandatory Sexual Harassment Prevention Training (February 25, 2022)
• Cautionary Tale Episode 45 Old Boy Kill-Joy- EEOC Sues Employer for Sexual Harassment and Retaliation (September 30, 2021)
• Cautionary Tale Episode 33 - EEOC Settles Tex-Mex Restaurant Servers' Sexual Harassment Case for $40,000 (August 15, 2019)

Helena Kobrin
March 4, 2022

Black Employee Charges Walmart's Unequal Treatment

The U.S. Equal Employment Opportunity Commission (EEOC) enforces federal laws prohibiting sex and race-based discrimination.

On February 11, 2022, the EEOC announced suit against Walmart alleging racial discrimination against a Black employee for providing an unsanitary, cluttered storage closet for lactation while giving a white employee a clean management office space for the same purpose.

The EEOC also contends Walmart discriminated against the complaining worker by failing to advance her to a management position on the presumption that with small children at home she would not stay in the workforce long-term or seek further promotion.

The lawsuit seeks monetary and punitive damages as well as injunctive relief to prevent future violations.

EEOC district director Julie Bowman commented, "The EEOC will continue to enforce Title VII [of the Civil Rights Act of 1964] to ensure that employers provide women with young children at home the same opportunities for career advancement as other workers and that nursing mothers are not provided inferior lactation spaces based on race."

Take-aways:

The suit illustrates why employers should provide clean, private and safe spaces for all lactating employees; implement effective harassment and discrimination prevention training and policies; and ensure management correctly investigates, documents and resolves any complaints of unlawful harassment, discrimination and retaliation.

At flat fees, we provide live webinar harassment prevention training for all California employees. We also include California compliant anti-harassment policies within our model handbook and offer a stand-alone lactation accommodation policy.

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)
• Tracking Down Discrimination - EEOC 2020 Report Retaliation, Disability Claims Predominate (April 16, 2021)
• What's New in 2020 Freedom of Expression - Higher Workplace Standards to Assist Lactating Moms (January 17, 2020)
• Cautionary Tales Episode 28 - EEOC Settles Female Miner Discrimination Case for $690,000 (June 27, 2019)

Cindy Bamforth
March 3, 2022

California's New Variant: Up to 80 Hours Paid Time Away

Effective February 19, 2022, California Labor Code 248.6's revived 2022 COVID-19 Supplemental Paid Sick Leave law (SPSL) requires employers with 26 or more on payroll to provide eligible CA employees with as many as 80 hours of paid benefits retroactively from January 1, 2022 through September 30, 2022.

Eligibility:

A covered full-time employee may take up to 40 hours of paid leave if unable to work or telework for any of these reasons:

• Vaccine-related: For attending vaccine/booster appointments or the employee or family member is recovering from vaccine-related symptoms;
• Caring for yourself: The employee is subject to a government-directed COVID-19 quarantine or isolation period, has been advised by a healthcare provider to quarantine, or is experiencing COVID-19 symptoms and seeking a medical diagnosis; or
• Caring for a family member: The employee is caring for a family member subject to COVID-19 quarantine or isolation or has been medically advised to do so, or is caring for a child whose school or place of care is closed or unavailable due to COVID-19 on the premises.

A covered full-time employee may take up to an additional 40 hours of leave if unable to work or telework because the employee tests positive for COVID-19 or is caring for a family member who tested positive.

Part-time employees may take comparable paid leave up to the number of hours they work over two weeks, with half of those hours available only when they or a family member test positive for COVID-19.

All eligible employees may take this paid leave even if they had received leave under previous California COVID supplemental paid leave laws.

Medical Certification:

Generally, an employer may not deny SPSL based solely on a lack of a health care provider's certification, but the employer may require positive test results before paying any of the additional 40 hours. See FAQs Nos. 19 and 20 for more information.

Miscellaneous Provisions:

• Payment is at the regular rate of pay, not to exceed $511 per day and $5,110 in total.
• Employers must provide written notice to all employees, such as the Labor Commissioner's model notice in English and Spanish.
• Itemized wage statements must list SPSL hours used separately from regular paid sick leave. If no hours have been used, then the line item must indicate 0. See FAQ No. 31 for more information.
• Employers may not require the use of SPSL before providing Cal/OSHA exclusion pay. This is a change from the 2021 SPSL law. See FAQ No. 36 for more information.
• Retaliation or discrimination against a covered employee requesting or using SPSL is strictly prohibited.

Take-Aways: Covered California employers should review new section 248.6 and the accompanying FAQs to confirm compliance steps, including closely coordinating with payroll companies, distributing the model notices, and training managers on the new law.

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)
• What's Even Newer in 2021- California Expands COVID-19 Paid Sick Leave - Detailed, Retroactive Requirements for Employers with 26 or More on Payroll (April 9, 2021)

Cindy Bamforth
February 25, 2022

California's Meal and Rest Breaks Don't Apply to Local Drivers Hauling Interstate Goods

A California appellate court has confirmed -- in Espinoza v. Hepta Run, Inc. -- that California meal and rest breaks do not apply to short-haul, property-carrying truck drivers in interstate commerce.

The decision stems from the seniority ("preemption") of federal law over state regulation in certain settings. Federal Motor Carrier Safety Administration (FMCSA) has issued "hours of service" (HOS) regulations for truck drivers limiting how long they may drive and what breaks are required. California has much stricter meal and rest breaks requirements for drivers under Labor Code § 226.7 and Wage Order 9.

The Espinoza court confirmed those FMCSA HOS rules rendered the California standards unenforceable even for HOS-covered "short-haulers."

Take-Away: The decision is not a "free-pass" on California's break rules for all truck drivers. Companies involved in short haul trucking should closely examine and verify their drivers are subject to the HOS rules before reaching that conclusion. For instance, the HOS regulations do not apply to all sizes of trucks. A management-side employment attorney can assist in navigating this determination.

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

See also:

• Emergency Braking Required- Strengthened Agreements with California Owner-Operators Vital to Maintain Their Independence (May 7, 2021)
• The Peril of Ignorance - Know and Comply: California's Itemized Paystub Requirements (May 6, 2021)

• California Piece Work Is a Piece Of Work - Haulers and Other Employers May Not Pay Purely by the Mile or Other Production (April 23, 2021)

Helena Kobrin
February 11, 2022

Workplaces Notices Must Be Current

California and the federal government require employers to distribute or post a legion of notices on workplace laws and complaint procedures.

Revised in 2022 is a downloadable California Labor Commissioner "victims of domestic violence, sexual assault, stalking notice" with expanded description of improper conduct (including retaliation for reporting) and available services for victims. Employers must provide this notice to new hires and to any worker requesting a copy.

Employers may also purchase this and other required notices in pamphlet format from the California Chamber of Commerce. As these are subject to legislative or regulatory updates, please confirm the use of the most recent versions at all times.

We also provide a more comprehensive list of such state and federal forms, pamphlets and notices as part of our California hire-to-fire employment forms package.

See also:

• Find Out What's New in 2022 Where Does the Time Go? (February 1, 2022)
• What's New in 2022: Law On the Wall - Required Postings in The Home Office(October 28, 2021)
• Words Change Worlds: Workplace Policy Handbook & Forms for 2022 (January 11, 2022)

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

Cindy Bamforth
February 10, 2022