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-Aways:

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

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-Aways:

Employers of five or more should watch this blog or signup for our E-letter for 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

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:

• 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

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

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

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:

• 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

Employment policy doesn’t have to be written but you will never hear this firm saying that. Particularly in litigation happy California, clearly stating personnel expectations and boundaries in a regularly updated manual or other compilation is not just good sense, it can amount to business suicide prevention.

Written workplace policy and protocols should include but not be limited to:

• Hiring standards and compliant application forms;
• At-will employment status;
• Hours of work, timekeeping, meal, rest and cool-down periods;
• Compensation standards and practices;
• California Family Rights Act (CFRA) Leave (five or more employees);
• Confidentiality of internal company information, e.g., client/patient listings;
• Individual employee acknowledgment of policy receipt and responsibility;
• Equal employment opportunity (EEO), including zero-tolerance on discrimination, harassment and retaliation;
• Harassment prevention training (five or more employees);
• EEO reporting (100 or more employees);
• Family Medical Leave Act (FMLA) (50 or more employees);
• Injury and illness prevention plan;
• Pandemic disease prevention and leave;
• Inspections of employee work areas and personal property;
• Integration with existing policy; future modifications;
• Lactation accommodation;
• Paid sick leave benefit;
• Pregnancy disability leave (five or more employees);
• Prevention of violence;
• Privacy of employee personal and medical information;
• COBRA (continuing health insurance) (20 or more employees);
• Cal-COBRA (continuing health insurance) (two or more employees);
• CalSavers (state-run set-aside retirement program for employers not offering another plan) (five or more employees); and
• WARN Act (plant closure/mass layoffs) (75 or more employees)

Businesses may also need to follow particular industry personnel rules that should be in writing, e.g., the current COVID prevention standards for health care practices and the affirmative action protocols for certain federal/state contractors.

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

See also:

• Expanding Retirement Account Opportunities – Employers of Five or More Must Register for CalSavers by June 30, 2022 (April 15, 2022)
• The Peril of Ignorance – Know and Comply: California’s Itemized Paystub Requirements (May 6, 2021)

Tim Bowles
April 22, 2022

On February 10, 2022, California Department of Fair Employment and Housing (DFEH) announced a suit against Tesla, Inc. alleging racial discrimination against Black employees, including segregation to the lowest levels of the workforce.

The DFEH contends Tesla turned a blind eye to extensive Black worker complaints of near-constant racist language and graffiti, including swastikas and other hate symbols.

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

DFEH district director Kevin Kish commented, “After receiving hundreds of complaints from workers and a nearly three-year investigation, DFEH found evidence that Tesla operates a racially segregated workplace where Black workers are subjected to racial slurs and discriminated against in job assignments, discipline, pay and promotion.”

The company denies the allegations: “Tesla strongly opposes all forms of discrimination and harassment and has a dedicated Employee Relations team that responds to and investigates all complaints. We also have a Diversity, Equity, and Inclusion team whose work is shown in this public report. Tesla has always disciplined and terminated employees who engage in misconduct …. Above all, Tesla continues to seek to provide a workplace that is safe, respectful, fair, and inclusive – all of which are vital to achieving our mission.”

Take-Aways:

The suit illustrates why employers should correctly train management and workers to prevent, detect and document resolution of all forms of unlawful or inappropriate harassment, discrimination and retaliation.

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

See also:

• Mind The Gap - Disparities Persist in California Pay Rates (March 25, 2022)
• Workplace Discrimination Prevention - California’s Fair Employment and Housing Act, A History (March 26, 2021)
• Cautionary Tale Episode 37 - Workplace Culture Clash – California Challenges Cisco Systems for Color (“Caste-Based”) Discrimination (September 4, 2020)

Cindy Bamforth
April 15, 2022

By June 30, 2021, California employers with more than 50 on payroll were required to:

• offer employees a retirement savings plan such as a 401(k); or
• to facilitate employee access to CalSavers, a state-run savings program for automatic payroll deductions deposited into a Roth IRA. See Mandatory Options for Retirement Funding: Mid-Size Employers Must Register for CalSavers by June 30, 2021 (June 4, 2021)

Affected smaller employers – those with a minimum of five on payroll which do not have existing retirement plans – must register with the program by June 30, 2022 and comply with the required administrative duties (see Employer FAQs ).

While registration is free, employers who fail to register within 90 days of service of a noncompliance notice will be charged a $250 penalty for each eligible employee, increasing to $750 per employee after 180 days.

Employers must only offer CalSavers participation. They may not advise employees on investments or savings, promote or discourage CalSavers participation, or make/match contributions.

Upon an employer’s registration, CalSavers will contact each employee directly. Employees may opt out within 30 days of receiving the initial paperwork (see Employee Program Details) and are otherwise automatically enrolled. Participants will accrue five percent interest on their set-asides. Employers must show these retirement deductions on the worker’s itemized wage statement (see California Labor Code section 226(a)(4)).

Take-Aways:

Companies employing five or more and that do not already offer employee retirement accounts must register with CalSavers by June 30, 2022.

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

See also:

• Chill, It’s the Law – California’s Mandatory Seventh Day Off Rules (April 7, 2022)
• The Peril of Ignorance – Know and Comply: California’s Itemized Paystub Requirements (May 6, 2021)

Helena Kobrin
April 15, 2022