Each California employer is required to give employees at least one day off during the company’s defined seven-day workweek (e.g., Monday to Sunday; Sunday to Saturday). There are three main exceptions:

the company may request an employee to work on the seventh day of a workweek if this is reasonably necessary, for example an unforeseen shortage of adequate workers due to illness or other factors. The employee shall be entitled to receive applicable overtime for that day as well as equivalent rest days during the same calendar month;

• the employee, fully informed of his/her entitlement to the rest day, voluntarily chooses not to take that day in any seven-day workweek, in which case he/she must receive advance scheduling and overtime approval from his/her supervisor. Such employees will receive applicable overtime pay but they will not be entitled to receive equivalent rest days during the same calendar month; and
• the employee works a seven-day workweek of no more than 30 hours and never more than six hours on any day of that workweek. Such employees will receive applicable overtime pay but they will not be entitled to receive equivalent rest days during the same calendar month.

This one-in-seven rule only applies to a business’s particular seven-day workweek and not on a “rolling” seven-day sequence. Mendoza v. Nordstrom, Inc., 2 California Reports (Cal.) 5^th 1074 (2017).

For example, with a company that defines the workweek as Monday through the following Sunday, it is possible for the employer to provide Monday off on a given week one and Sunday off on the following week, with 12 straight days of labor in-between.

A violation of the rules is a misdemeanor and subjects the employer to civil penalties.

Take-Aways:

Management must operate under policy and practice consistent with these rules. Correct and thorough documentation, including the employee’s written acknowledgment, is vital for the worker opting for working on the seventh day.

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

See also:

• What’s New In 2022 – California Minimum Wage Rate Increases for January 1, 2022 (November 24, 2021)
• The Basics of Overtime – Five Rules for California (April 27, 2018)
• California’s Weekly Day of Play – Recent Supreme Court Decision Resolves Some Questions, Leave Another (June 13, 2017)

Tim Bowles
April 7, 2022

As larger employers have been discovering lately, arbitration agreements can be more of a curse than a blessing.

In Abernathy v. Doordash, Inc., over 6,000 delivery drivers (couriers) – who had previously agreed to arbitrate any disputes – filed individual arbitration demands with the American Arbitration Association (AAA) alleging they had each been improperly classified as independent contractors rather than employees.

When Doordash received a $12 million invoice for AAA’s filing fees, it sought to pump the brakes on the proceedings. In granting the couriers’ motion to compel the arbitrations, the court scathingly concluded: “The employer here, DoorDash, faced with having to actually honor its side of the bargain, now blanches at the cost of the filing fees it agreed to pay in the arbitration clause. No doubt, DoorDash never expected that so many would actually seek arbitration. Instead, in irony upon irony, DoorDash now wishes to resort to a class-wide lawsuit, the very device it denied to the workers, to avoid its duty to arbitrate. This hypocrisy will not be blessed, at least by this order.”

Arbitration has many business-related advantages, including a more efficient, time-saving process that does not involve a potentially more subjective jury process. Arbitration agreements can also include a class action “waiver” that would require the worker to resolve his or her specific employment complaint in an individualized arbitration proceeding.

In California, employers must pay for the lion’s share of the costs of arbitration upon receipt of the arbitration provider’s invoice. As the Abernathy ruling illustrates, arbitration can add up to even millions of dollars in up-front arbitration filing costs, thereby forcing the employer to settle regardless of the merits of the claims.

To make matters worse, an employer’s failure to pay these arbitration fees:

• gives each employee the options of proceeding in court or proceeding with the arbitration, with the employer to cover the employee’s attorney’s fees and costs caused by its non-payment; and
• in extreme cases gives the court the power to strip the employer of defending itself

Take-Aways:

For larger employers, arbitration agreements removing an employee’s ability to bring or take part in a class action might not be the best choice for the huge fees they may generate. It’s best to consult with an employment attorney before abandoning or modifying workplace arbitration agreements to minimize the likelihood of – or costly effects of – a mass arbitration strategy as above.

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

See also:

• Their Day in Court – Sexual Harassment Accusers May Opt Out of Forced Arbitration (March 11, 2022)
• The Right to Fight – Battle Continues Over Employer-Required Arbitration Agreements (September 24, 2021)
• What’s New in 2020 – California Prohibits Mandatory Employee Arbitration Agreements (December 18, 2019)

Cindy Bamforth
April 6, 2022

Employers must maintain accurate records of all time worked by hourly employees. Labor Code 1174(d). Management may not prohibit employees from keeping a personal record of such work time.

Accordingly, time records – whether manual or electronic – should include an hourly worker’s daily shift start and end times and the beginning and end times for any meal period.

Other best practices:

1. Clearly written policy requiring all labor to be “on the clock” and making each employee responsible for her/his accurate daily timekeeping, with the consequences spelled out for: false, altered or destroyed time records; time clocked prior to the actual start of work or after the actual end of the shift; and time recording for another employee;

1. Policy and practice requiring employees: to attest to such accuracy and to management’s provision of daily meal periods and rest breaks; and to report immediately any timekeeping errors or claimed break deprivations to management; and
   
2. Regular audits of time records to confirm accurate and compliant time recording, including any pattern of employees working through meal periods.

Employers may also implement policy to calculate work time by rounding to the nearest tenth or one-quarter of an hour as long as the employee is paid for all hours worked over a period of time. See, See’s Candy v. Superior Court, 210 Cal.App.4^th 889 (2012).

However, such rounding practices cannot apply to the 30-minute meal break. See, Kennedy Donohue v. AMN Services, Inc., 11Cal. 5^th 58 (2021).

In contrast to the federal standard that allows employers to avoid paying wages for a worker’s few seconds or minutes of labor after clocking out (the “de minimis” rule), California requires companies to pay employees for every moment of work, e.g., exiting a store and locking up after setting an alarm or walking co-workers to their cars. See, Troester v. Starbuck’s, 5 Cal.5^th 829 (2018).

Rejecting the argument that tracking what might be trivial amounts of “after clock” work time was unreasonably difficult, the California Supreme Court in Troester observed that technological advances – e.g., smartphone apps – enable and require employers to be proactive in measuring and paying for such extra labor regularly performed.

Take-Aways:

California employers can face expensive legal challenges and significant liability for failure to operate from clearly stated, compliant timekeeping practices and for neglecting to regularly confirm all hourly workers are following suit. See also:

• Square Meal Is Deal – California Supreme Court Prohibits Meal Break Time Rounding (April 1, 2021)
• Apple Outsmarted – Company Must Pay Workers for Bag and Device Check Time (March 12, 2020)
• Every Minute Counts – Employers Must Pay for All Minutes Worked Before and After Shifts (September 7, 2018)

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

Timothy Bowles
April 1, 2022

Federal law requires employers to obtain from every new worker a completed Form I-9 and satisfactory supporting documents from Lists A, B and/or C as a condition of hiring. The documents on List B establish identity only, such as driver’s licenses, voter registration cards, or military IDs.

To accommodate pandemic disruptions, U.S. Citizenship & Immigration Services (USCIS) issued rules effective May 1, 2020 that permitted employers to temporarily accept expired List B identity documents when renewal was impossible due to closed motor vehicle or other government offices.

With most such offices now reopened and new alternative renewal methods in place, USCIS is canceling this relaxed requirement. Starting May 1, 2022, employers must only accept unexpired List B documents.

For persons they still employ, companies that accepted expired documents under the temporary rule must obtain either a renewed or different unexpired List B document by July 31, 2022. Management must also document compliance in the “Additional Information” field on each affected employee’s I-9 form. No such action is required for persons no longer employed.

Take-Aways:

As of May 1, 2022, all employers must stop accepting expired List B documents. They also must replace expired documents previously accepted by July 31, 2022.

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

See also:

• What’s New in 2022 Devilish Details - Special I-9 Rules for COVID-Caused Remote Workers are Extended to April 30, 2022 (January 21, 2022)
• No-Fail Detail - Pandemic-Driven Form I-9 Documentation Rules Extended to May 31, 2021 (April 15, 2021)

Helena Kobrin
March 31, 2022

A troubling March 15, 2022 report shows California’s largest employers have yet to ensure adequate equal employment opportunities in their hiring and pay practices.

Responsible for enforcing this state’s equal pay laws, the Department of Fair Employment & Housing (DFEH), on survey of businesses together employing some 6.3 million workers, has found:

• Women are overrepresented among low-wage workers and administrative support, sales and service workers;
• Hispanics and Blacks are also overrepresented among low-wage workers; while
• Men are overrepresented high-wage workers and executives, managers and craft workers.

DFEH Director Kevin Kish stated, “Today’s report reinforces the need for employers to review their compensation and other employment practices to correct pay disparities and ensure equal opportunity in their workplaces. DFEH will continue to vigorously enforce California’s equal pay and antidiscrimination laws.”

As a reminder, covered employers (100+ on payroll) must submit 2021 pay data reports by April 1, 2022.

Take-Aways:

All California employers should consider conducting internal wage and hour audits of their job advertising, interviewing, pay scales and other hiring and retention practices with the assistance of an experienced employment law attorney.

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

See also:

• Understanding California’s Equal Pay Act – Labor Commissioner Issues Frequently – Asked Questions on Workplace Gender Parity (April 22, 2016)
• California Labor Laws 2016: Fair Pay Act Aims To Level The Playing Field – Law Mandates Equal Pay Between Genders for Equal or Substantially Similar Work (November 18, 2015)

Cindy Bamforth
March 25, 2022

In the absence of a writing or factors showing otherwise, California and most other states presume employment relationships are “at-will.” The at-will employee or employer may terminate the relationship at any time, with or without advance notice, and for any lawful reason or no reason.

The opposite – and common for high-compensation executives – is a “term” employment agreement for a definite time period on which the parties can only terminate early for a “good” or “just” cause.

Either way, best practice is to have the arrangement in writing, leaving no room for disputes over what one side might have “promised” or implied in a verbal, unwritten relationship.

Whether at-will or not, a written employment contract can and should make clear vital points including compensation, use and return of company property, confidentiality/nondisclosure obligations, and employer ownership of employee-generated material created in the course of employment.

Best practices also include upfront invention assignment agreements for employees involved in creating or updating unique technology. Such agreements should clearly distinguish between employer- and employee-owned inventions, along with other pertinent information.

California requires written, signed commission agreements between an employer and salesperson.
Employer-employee arbitration agreements should also be in writing, with the terms carefully stated to comply with current – and fluctuating – state and federal law.

Take-Aways:

Written workplace agreements are the best policy, with qualified employment attorneys enlisted to create and regularly update their contents.

See also:

• Their Day in Court: Sexual Harassment Accusers May Opt Out of Forced Arbitration (March 11, 2022)
• What’s New in 2020 California Prohibits Mandatory Employee Arbitration Agreements (December 18, 2019)

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

Helena Kobrin
March 25, 2022

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)
• Cautionary Tale Episode 45: Old Boy Kill-Joy- EEOC Sues Employer for Sexual Harassment and Retaliation (September 30, 2021)

Tim Bowles
March 18, 2022

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:

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

Cindy Bamforth
March 17, 2022

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