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

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:

• 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

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:

• 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

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 to do 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 make 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:

• 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

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-Aways:

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

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:

• What’s New in 2022: Law On the Wall – Required Postings in The Home Office (October 28, 2021)

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

Cindy Bamforth
February 10, 2022

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 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:

• 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:

• 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