The California Labor Commissioner has launched an online wage claim application in English and Spanish.

Upon creating an account, applicants can access forms and upload documentation (e.g., paystubs, bounced checks) to seek recovery for Labor Code violations such as:

• Being paid less than minimum wage;
• Not being allowed to take meal breaks, rest breaks, and/or preventative cool-down breaks;
• Not receiving agreed upon wages (including overtime, commissions, and piece rate);
• Owners or managers improperly taking tips;
• Not accruing or permitting use of paid sick leave;
• Failure to reimburse for business expenses;
• Not being paid promised vacations or bonuses;
• Unauthorized paycheck deductions;
• Unpaid split shift premiums;
• Bounced paychecks;
• Not receiving reporting time pay;
• Not receiving final wages in a timely manner; and
• Failure to provide timely access to personnel files and payroll records.

Labor Commissioner Lilia Garcia-Brower stated, “Workers are now able to take swift action to file wage theft complaints, neutralizing several obstacles that historically have been barriers to accessing basic protections.”

Take-Aways:

Employers should know and comply with all applicable – and changing – workplace wage-related laws, conducting regular audits of practices and recordkeeping, preferably with an experienced employment attorney.

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

See also,

• What’s New In 2022, Where does the Time Go? (February 3, 2022)
• Words Change Worlds: Workplace Policy Handbook & Forms for 2022
• What’s New in 2022 California Minimum Wage Rate Increases for January 1, 2022 (November 24, 2021)
• Please: Document Workplace Meal Breaks: Require Employees to Clock Out and Back In on Their Meals (June 4, 2021)

Cindy Bamforth
February 4, 2022

As a possible first step toward such limitations across other California industries, Assembly Bill (AB) 701 places specific conditions on warehouse distribution center imposition of worker production quotas, effective January 1, 2022.

New Labor Code 2100 defines “warehouse distribution centers” as general warehousing and storage, merchant wholesalers of durable and non-durable goods, and electronic shopping and mail-order houses (but not farm product warehousing and storage), which have 100+ employees in one location or 1,000+ employees throughout the state.

Among other particulars, such employers must now ensure that:

• No quota prevents an employee from taking legally-required meal and rest breaks or bathroom breaks, including time to and from the bathroom, or occupational health and safety actions (Labor Code 2101);
• Management does not take adverse action for failure to meet quotas that do not allow sufficient time for such breaks;
• If an employee takes time to address a workplace health and safety issue, management must treat it as “time on task and productive time for purposes of any quota or monitoring system” (Labor Code 2103); and
• Upon request, management provides an employee with “a written description of each quota to which the employee is subject and a copy of the most recent 90 days of the employee’s own personal work speed data.” Management must also provide a former employee the same data for 90 days prior to separation. In either case, the data must be provided “as soon as practicable,” but no more than 21 days from the request (Labor Code 2104).

Any adverse action an employer takes within 90 days of an employee’s first quota information request or of any complaint “related to a quota” will raise a rebuttable presumption of retaliation (Labor Code 2105).

The Labor Commissioner’s recently published FAQs directs that by January 31, 2022 all covered employers must give each applicable employee “a written description of each quota the employee works under. This includes the number of tasks to be performed or materials that must be produced or handled within a time period, and any potential adverse employment action that could result from failing to meet the quota.”

Take-Aways:

• While these remarkably specific conditions for valid quota systems only apply to covered warehouse distribution centers, employers in other quota-using industries should keep an eye out for expansion of such government initiatives.

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

See also:

• Find Out What’s New In 2022 - Enlightenment Is Good For You: Annual Seminar for Employers
• Words Change Worlds: Workplace Policy Handbook & Forms for 2022
• Please: Document Workplace Meal Breaks: Require Employees to Clock Out and Back In on Their Meals (June 4, 2021)

Helena Kobrin
January 28, 2022

The federal government requires employers to verify identity and work authorization of their employees using a Form I-9 (Employment Eligibility Verification) with certain supporting documentation.

The Department of Homeland Security (DHS) has recently announced that the extension for employers to inspect I-9 documents remotely will continue to apply from December 31, 2021, to April 30, 2022 for workplaces with no employees physically present due to the pandemic.

Thus, eligible employers are still able to perform the required I-9 document review remotely over a video link, fax, or email so long as they obtain, inspect, and retain copies of the documents within three business days of hire. Such employers must also provide written documentation of their remote onboarding and telework policy for each employee.

Once normal business operations resume, the remote hires must then provide in-person documentation verification within three business days, at which time the employer must enter “COVID-19” as the reason for the physical inspection delay in the form’s “additional information” field.

Potential consequences for noncompliance can include civil fines of up to $23,331 per occurrence as well as criminal prosecution and imprisonment.

Affected employers must monitor the DHS and U.S. Immigration and Customs Enforcement (ICE) websites for further updates.

Clear, written employee policies should include the protocols for remote (“telecommuting”) workers. Our template employment forms and handbook packages cover this area.

See also:

• Words change Worlds(January 11, 2022)
• New year, new Leaf – checklist for a California workplace policy handbook(December 3, 2021)
• Find Out What’s New in 2022 – Annual Seminar for Employers Covering Employment Legal Essentials and New Workplace Laws for 2022 (November 24, 2021)
• No-fail detail - pandemic-driven form i-9 documentation rules extended to may 31, 2021(April 15, 2021)

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

Cindy Bamforth
January 21, 2022

The U.S. Supreme Court has come to opposite conclusions in two cases challenging federally mandated COVID-19 vaccinations.

Companies with 100+ Employees

In National Federation of Independent Business v. Dept. of Labor, Occupational Safety and Health Administration, the Court (6-3) invalidated mandatory requirements to vaccinate or test weekly for companies with 100+ workers. The majority found that OSHA exceeded its authority by:

• Imposing such requirements via Emergency Temporary Standards (ETS) enacted without the normally required rule-making process, including public comment; and
• Ordering a broad public health measure for the first time in its existence, affecting 84 million people for a “universal risk,” and not a particular workplace occupational hazard.

The Court placed the ETS on hold until the lower Court of Appeals conducts its review of these nationwide standards and its decision receives any Supreme Court review.

Healthcare Workers at Medicare and Medicaid Facilities

In Biden v. Missouri, a five-justice majority ruled the Secretary of Health, Education and Welfare (Secretary) may enforce a mandatory vaccination rule for medical facility employees, contractors, and volunteers. Non-complying employers may have their Medicare and Medicaid contracts terminated. The majority found:

• The Secretary had acted within the authority conferred by Congress to protect health and safety of patients in those facilities; and
• Even though the vaccine mandate goes further than prior rules, it is routine for the Secretary to impose conditions related to infectious diseases and worker qualifications on such medical facilities.

The Court’s ruling is temporary while the lower appeals court, and potentially the Supreme Court, review the Secretary’s mandate more closely.

Both cases drew strong dissents taking issue with the premises for the rulings.

Take-Aways:

• Medical facilities providing Medicare or Medicaid-covered services must comply with the Secretary’s mandate pending final outcome in the Biden case;
• Whatever the final outcome of either case, affected employers – and employers of any size – must ensure they comply with applicable state and local vaccination requirements;
• Competent legal advice is crucial in navigating the ever-changing universe of laws, guidances, and rules covering COVID-19.

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

See also:

• What’s New In 2022 Sewing Up Pandemic Conflicts - California’s Newly Modified, Uniform Quarantine/Isolation Period (January 14, 2022)
• Find Out What’s New in 2022 – Enlightenment Is Good For You (January 14, 2022)
• Stay-Away “Exclusion” Pay – Require Pandemic Wages for Positive Test or Workplace Exposure (March 18, 2021)

Helena Kobrin
January 21, 2022

California has at last moved to eliminate conflicting agency directions on pandemic-related isolation and quarantine timeframes.

As covered in What’s New in 2022 Going the Distance - Cal/OSHA Updates Emergency Temporary Standards, on December 16, 2021, Cal/OSHA revised its COVID-19 Prevention Emergency Temporary Standards (ETS), effective January 14, 2022 and applying to most California workers not covered by the Aerosol Transmissible Diseases standard.

The revised ETS changed the COVID isolation and quarantine periods for workers testing positive or exposed to a positive case. For example, all fully-vaccinated, asymptomatic close contacts were permitted to return to work immediately with social distancing for 14 days. All unvaccinated asymptomatic close contacts could return to work either: (i) after 14 days with no physical distancing requirements; (ii) after 10 days with distancing for 14 days; or (iii) after seven days upon receipt of a negative test at least five days after the close contact, with physical distancing for 14 days.

Then on December 27, the Centers for Disease Control and Prevention (CDC) shortened the recommended time for isolation and quarantine to as little as five days. The California Department of Public Health (CDPH) promptly matched those isolation and quarantine five-day timeframes along with some additional testing and masking requirements.

These standards contradicted many of the ETS’s 14- and 10-day exclusion periods.

Accordingly, on January 6 and through two new FAQs, Cal/OSHA again adjusted its recommended isolation and quarantine periods to largely align with the CDPH’s. Not that the field is no longer complex. The FAQs address the CDPH exclusion periods in three detailed tables, which must be carefully reviewed to determine whether and for how long to exclude a particular COVID case or a close contact from the workplace.

Take-Aways:

As of January 14, 2022, employers should follow the Cal/OSHA exclusion tables provided in the new FAQs. Employers must also check for any local county guidance, such as Los Angeles County’s Isolation and Quarantine orders. Consulting with management-side employment counsel on best solutions to meet applicable, ever-changing and sometimes confusing workplace exclusion requirements is always sound practice.

We will address these ETS revisions and FAQs more fully in our upcoming employment law webinar.

See also:

• 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)
• What’s New in 2021 Infection Prevention Direction CAL/OSHA COVID-19 Emergency Temporary Standards (February 5, 2021)

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

Cindy Bamforth
January 14, 2022

The California Labor Commissioner has revoked the garment manufacturing license of VRP Fashion, Inc. for workplace violations, putting it out of business.

A May, 2021 inspection discovered that owner Veronica Rojas Pablo had falsely claimed in VRP’s license application that the company had no employees. The Commissioner also found that Ms. Pablo failed to produce evidence of workers’ compensation insurance, to respond to a stop work order and to appeal citations for VRP non-compliance. On a follow-up visit, Ms. Pablo reportedly barred the inspector from entry and had her workers leave out the back door.

VRP’s closure comes on the implementation of the Garment Workers Protection Act (GWPA), effective January 1, 2022, which bans “by the piece” compensation for garment workers except as an “incentive bonus” on top of minimum wage payment for every hour worked. Citing rife abuse of such workers, the GWPA also puts new teeth into state regulation of that industry, for example expanding the definition of “garment manufacturer” to retailers who have until now escaped enforcement by creating “layers of subcontracting.”

Take-Aways:

• Employers must comply with all applicable – and changing – workplace laws;
• False statements and less-than-honest tactics in response to government regulation are never a good idea;
• For the exploitation cited in the GWPA’s enactment, California has a “new sheriff in town” to protect workers in this state’s garment industry, the largest in the nation.

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

See also:

• Cautionary Tale Episode 45 Old Boy Kill-Joy: EEOC Sues Employer for Sexual Harassment and Retaliation (September 30, 3031)
• Cautionary Tale Episode 44 Fined Dining: Restaurant Must Eat $1.6M Bill for Labor Violations (August 26, 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
Tim Bowles
January 6, 2022

The Internal Revenue Service has announced its 2022 optional standard mileage reimbursement rate for employee business use of a personal vehicle, effective January 1, 2022, up from 56 cents to 58.5 cents/mile.

These standard business mileage rates stem from annual government studies of fixed and variable automotive operating costs, including insurance, repairs, maintenance, gasoline and oil.

Under California Labor Code section 2802, employers must reimburse employees for all actual work-related expenses necessarily incurred.

According to California’s Division of Labor Standards Enforcement, using the IRS mileage reimbursement rate will satisfy an employer’s reimbursement obligation unless the employee provides evidence demonstrating the rate does not cover all actual and necessary business-related vehicle expenses, in which case the employer must pay the difference.

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

Cindy Bamforth
December 28, 2021

On December 16, 2021, California’s Occupational Safety and Health Standards Board readopted and revised the Cal/OSHA COVID-19 Prevention Emergency Temporary Standards (ETS) to incorporate the latest California Department of Public Health (CDPH) guidance. The revised ETS take effect on January 14, 2022 and apply to most California workers not covered by the Aerosol Transmissible Diseases standard.

Important ETS revisions include:

Post-exposure notification. Clarification on how to notify workers of potential COVID-19 workplace exposure within one business day.

Face covering. Types of acceptable face coverings and alternative requirements for those with medical or mental health-related conditions.

Testing. Post-exposure testing must be available to everyone in the exposed workgroup, even asymptomatic fully-vaccinated employees.

Exclusion/return to work criteria. The “close contact” return-to-work timeframes now comport with current CDPH guidelines:

• All recently-recovered COVID cases (i.e., those with natural immunity) and all fully-vaccinated, asymptomatic close contacts may return to work immediately after close contact so long as they (i) wear a face covering, (ii) maintain six feet of distance from others for 14 days, and (iii) receive CDPH’s recommended “close contact” precautions.

• All unvaccinated asymptomatic close contacts may return to work with face coverings either: (i) after 14 days from close contact with no physical distancing requirements; (ii) after 10 days with physical distancing for 14 days; or (iii) after seven days upon receipt of a negative test at least five days after close contact with physical distancing for 14 days.

Unchanged requirements include:

• Establishing, implementing and maintaining an effective written COVID-19 prevention program (CPP);

• Providing effective training to employees to prevent the spread; and

• Relaying instructions regarding certain COVID-19 benefits for affected employees.

Cal/OSHA also issued a new fact sheet and will presumably publish an updated Model CPP in English and Spanish in the coming weeks.

Employers must also follow either their local health department’s indoor mask mandate, such as LA County’s public health order, or the latest CDPH order.

We will address these ETS revisions more fully in our upcoming employment law webinar.

See also:

• Nationwide Mandatory Workplace Vax Rules Are On Hold – California’s Mandatory Directives for Certain Health Care Workers Remain in Place (November 19, 2021)
• Easy Does It Take Two; Cal/OSHA Revises Written COVID-19 Prevention Program (July 15, 2021)
• What’s New in 2021 Infection Prevention Direction CAL/OSHA COVID-19 Emergency Temporary Standards (February 5, 2021)

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

Cindy Bamforth
December 22, 2021

California’s Fair Employment and Housing Act (FEHA) prohibits employers from discriminating, harassing, or retaliating against workers on the basis of protected classifications such as race, religion, gender, disability, and the like. To protect employee rights, FEHA has long required employers to preserve personnel records for no less than two years.

Starting January 1, 2022, Senate Bill (SB) 807 requires companies to “maintain and preserve any and all applications, personnel, membership, or employment referral records and files for a minimum period of four years after the records and files are initially created or received,” and to “retain personnel files of applicants or terminated employees for a minimum period of four years after the date of the employment action taken.”

Take-Aways:

Employers should implement or confirm policy that securely preserves personnel records for current workers, former employees and applicants for a minimum of four years.

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

See also:

• Workplace Discrimination Prevention: California’s Fair Employment and Housing Act, A History (March 26, 2021)
• Preventing Discrimination in a Pandemic: California’s Expanded Guidelines
  on Workplace Vaccination Practices (March 11, 2021)
• Time’s Up, Extended: Longer Three-Year Deadline For Initiating Discrimination Claims (January 10, 2020)

Helena Kobrin
December 17, 2021