The E.E.O.C.'s New Guidelines for Handling Exemption Requests

The federal Equal Employment Opportunity Commission (EEOC) has again expanded its pandemic guidelines, this time to address the potential conflict between mandatory workplace COVID vaccination policies and employee religious belief and practice.

The EEOC oversees enforcement of Title VII of the Civil Rights Act of 1964, in part protecting workers from religious discrimination. On the October 28 issue of these revised standards, EEOC Chair Charlotte A. Burrows observed "Title VII requires employers to accommodate employees' sincerely held religious beliefs, practices, and observances absent undue hardship. This update will help safeguard that fundamental right as employers seek to protect workers and the public from the unique threat of COVID-19."

Among other details, the guidelines direct:

• Notice Required: Employees and job applicants must inform their employers if they seek an exception to an employer's COVID-19 vaccine requirement due to a sincerely held religious belief, practice, or observance;
• Social, Political or Other Views or Preferences Not Covered: Title VII requires employers to consider requests for religious accommodations but does not protect social, political, or economic views, or personal preferences of employees who seek exceptions to a COVID-19 vaccination requirement;
• Broad Definition of Religion: Title VII's definition of "religion" protects nontraditional religious beliefs. The employer should not assume that a request is invalid simply because it is based on unfamiliar religious views or practices;
• Employer Ability to Confirm Request Validity: While an employer should assume that an accommodation request is based on sincerely held religious beliefs, if management has an objective basis for inquiring further, they can make a "limited factual inquiry" and seek "additional supporting information" to confirm the religious nature or sincerity of the request;
• Employee Obligation to Cooperate with Confirming Process: An employee should not assume that management already knows or understands the religious nature of his/her belief. A worker who fails to cooperate with an employer's reasonable request for verification risks losing any subsequent claim
  that the employer improperly denied an accommodation;
• Determining Sincerity of Request: Gauging sincerity comes down to "individual credibility." Pertinent factors include whether the employee has acted in a manner inconsistent with the professed belief, "although employees need not be scrupulous in their observance"; and
• Reasonable Accommodation vs. Company Undue Hardship: Employers that demonstrate "undue hardship" are not required to accommodate an employee's request for a religious accommodation. The line between employer ability and obligation to provide a reasonable accommodation and undue hardship absolving management from accommodation comes down to careful examination of all relevant factors in each case. For example, is it possible to arrange (or continue) telework for the employee without imposing unreasonable burden on the company's finances or operations?

Take-aways: It is essential for management to establish a protocol for such exemption requests and to address each one empathetically, systematically, and with thorough documentation of the process. Consultation and guidance with knowledgeable legal counsel is more than just a good idea. Terminating an employee seeking such accommodation on undue hardship grounds must be the last resort.
See also:

• Worker COVID Vaccinations - E.E.O.C. 's Expanded Guidelines for Pandemic Management (December 17, 2020)
• COVID's Constant? ... Change; EEOC's Expanded Guidelines on Screening, Testing, and Pandemic Management (September 18, 2020)
• Older Folks are People Too - Expanded Federal Pandemic Guidelines Allow Favorable Treatment for Aged 65-Plus Personnel (July 24, 2020)
• Thinking the Unthinkable - Expanding Federal Post-Pandemic Guidelines for Safeguarding Returning Personnel (April 23, 2020)

We continue to assist employer clients on pandemic-related issues, including the fielding of such exemption requests. For more information, contact Tim Bowles, Cindy Bamforth orHelena Kobrin.

Tim Bowles
November 5, 2021

El Super Grocery Store Citations Tripled

In July 2021, the California Labor Commissioner cited Bodega Latina Corporation $447,836 for failure by three of its El Super grocery stores to pay 95 workers COVID-19 supplemental paid sick leave (SPSL). The Commissioner called for any other affected El Super employees to come forward.

The workers responded. The Commissioner has now assessed Bodega Latina another $1,164,500 for SPSL violations on 294 employees in 38 additional Southern California El Super stores, including:

• $369,527 wages, damages and interest under 2020 COVID-19 SPSL for El Super food sector workers;
• $42,473 wages, damages and interest under 2021 COVID-19 SPSL on Bodega Latina as employer with 26 or more workers;
• $752,500 penalties on SPSL nonpayment or late payment.

The Labor Commissioner stated: "Supplemental paid sick leave is a tool to protect our communities by stopping the spread of COVID-19 through the workplace. After citing El Super in July, we heard from additional workers who had their sick leave denied or delayed. We broadened the scope of our investigation to capture as many workers impacted by these violations as possible and provide them what they are due."

California's SPSL expired on September 30, 2021. However, other government COVID-19 requirements and guidelines remain in force. For example, Cal/OSHA continues to aggressively enforce its Emergency Temporary Standards (ETS) on COVID-19 prevention and wage continuation for those out with the virus.

Take-Away: Employers must track and comply by policy and practice with the changing COVID-19 protocols and benefits. Our firm regularly assists clients to stay up-to-date.

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)
• Cautionary Tale Episode 39 - Fish Story Gets Real: Cal/OSHA Fines Frozen Food Firm for COVID-19 Violations (December 2, 2020)
• Cautionary Tale Episode 38 - Food for Second Thought: Cal/OSHA Fines Supermarkets For COVID-19 Violations (October 16, 2020)
• Suffocation Orders - California's Safety Agency Now with Pandemic "Imminent Hazard" Shutdown Powers (October 2, 2020)
• Pandemic Police on Patrol - Cal/OSHA Hitting Employers Statewide for COVID-19 Non-Compliance (September 10, 2020)

Helena Kobrin
October 29, 2021

Required Postings in the Home Office

California and the federal government require employers to conspicuously post a range of printed statements on workplace laws and required procedures, most available online from such agencies as the California Department of Fair Employment and Housing (DFEH), California's Employment Development Department (EDD), the California Department of Industrial Relations (worker's compensation), the California Industrial Welfare Commission (IWC) (wage orders), and the U.S. Department of Labor.

California and federal law have forbidden employers from emailing the required notices to their remote work force to print and post; currently all must be delivered hard copy.

Effective January 1, 2022, California Senate Bill 657 (SB 657) will permit employers to email certain mandatory posters to teleworkers to print (at the employers' expense) and post in their home offices -- so long as the employer also physically posts the required postings in its primary workplace.

Unfortunately, SB 657 only permits electronic distribution of some and not all required postings, e.g., minimum wage notices. It does not cover the DFEH, EDD, or other state and federal notices, which must still be distributed hard copy to all remote workers.

Take-Aways:
Until such time as all posters can be distributed electronically, it's safest to mail hard copies to remote workers.

Employers can also require employees to send photos showing the printed posters tacked on their home office walls.

Employers may purchase a wide-ranging "all-in-one" California and federal employment notices poster for 2022 through the California Chamber of Commerce website.

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

See also:

• What's New in 2022 Peace but No Quiet - California Limits Confidentiality on Settlement of Workplace Discrimination Claims (October 22, 2021)
• What's New in 2022 - In-laws Are People Too; California's Expanded Family Medical Leave Now Covers Parents-in-Law (October 19, 2021)
• Good Workplace Policy is Boss - Our Template Handbook & Forms for 2021 (May 28, 2021)

Cindy Bamforth
October 28, 2021

California Limits Confidentiality on Settlement of Workplace Discrimination Claims

Beginning 2019, any agreement to settle a California sexual harassment, sexual assault or sex discrimination court or administrative complaint could not include a confidentiality provision prohibiting disclosure of information regarding the claim. See, Silence is Not for Sale; Hush Money for Sexual Harassment, Assault and Retaliation Now Prohibited in California (October 18, 2018)

Effective January 1, 2022, Code of Civil Procedure (CCP) 1001 expands to prohibit confidentiality of "factual information" for workplace harassment or discrimination based on any characteristic protected under the Fair Employment and Housing Act (FEHA), not just those based on sex.

Section 1001 permits settlement agreements to shield, at the claimant's request, his or her identity and "all facts that could lead to the discovery" of that identity, so long as a government agency or a public official is not a party to the agreement.

In apparent recognition of the chilling effect otherwise created, section 1001 specifically does not prohibit confidentiality of an amount paid in settlement.

CCP 1670.11 makes void and unenforceable settlement provisions that prevent a party from testifying on alleged criminal conduct or sexual harassment when required or requested to attend by a "court order, subpoena, or written request from an administrative agency or the legislature."

Take-Aways: Employers settling FEHA litigation must include provisions preserving employee rights under these two Code of Civil Procedure sections.

See also:

• Keep it Current - Required Sexual Harassment Prevention Training by Video Conference (October 6, 2021)
• 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)

For further assistance, please contact one of our attorneys Tim Bowles, Cindy Bamforth orHelena Kobrin.

Tim Bowles
October 22, 2021

California's Expanded Family and Medical Leave Now Covers Parents-in-Law

Last year California expanded unpaid family and medical leave under the California Family Rights Act (CFRA) to cover employers with five or more employees (instead of the prior 50 or more or payroll).

Under existing law, covered employers must grant an eligible employee's request to take up to 12 workweeks of unpaid protected time off during any 12-month period for "family care and medical leave" for needed care of a child, parent, grandparent, grandchild, sibling, spouse or domestic partner with a serious health condition.

"Parent" was defined as a biological, foster or adoptive parent, a stepparent, a legal guardian, or other person who stood "in loco parentis" (i.e., acting in the place of a parent) to the employee as a child.

Effective January 1, 2022, the new law (Assembly Bill 1033) expands the definition of "parent" to include leave to care for a "parent-in-law."

Take-Aways:
Covered employers should promptly update their employee handbooks and CFRA absence request forms. They should also educate and train their supervisors on this expanded definition.

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

See also:

• Good Workplace is Boss - Our Template Handbook & Forms for 2021 (May 28, 2021)
• What's New in 2021: Workplace Time Outs - California's Expanded Family and Medical Leave Significantly Impacts Small Business (November 12, 2020)
• For the Records - Sound Management Practices for Personnel Documentation(August 14, 2020)

Cindy Bamforth
October 19, 2021

Intentional Pay Deprivation Is a Possible Felony

California has long regarded intentional employer failure to pay wages and tips as a misdemeanor, with civil penalties and remedies for their recovery. Labor Code sections 215 and 216. Effective January 1, 2022, prosecutors will have the discretion to bring felony charges for such violations under certain conditions. Penal Code section 487m.

"Theft of wages" is the intentional deprivation of wages, benefits, tips or other workplace compensation the employer knows is due the employee under the law. Section 487m expands "employee" to include an independent contractor and "employer" to include the contractor's hiring entity.

Such deprivation becomes grand theft for amounts greater than $950 from any one employee or independent contractor or $2,350 from two or more employees/contractors in any consecutive 12-month period. Grand theft can be a misdemeanor with county jail imprisonment for up to one year or a felony with 16 months in the county jail or state incarceration for two or three years.

Section 487m permits additional penalties of up to $10,000 and worker wage recovery through the "restitution" provisions of the Penal Code (sections 1202.4 and 1203.1).

The greater labor law's potential bite, the greater business's required vigilance to ensure full understanding and compliance with applicable workplace provisions.

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

See also:

• California Summer Minimum Wage Rate Increases (June 10, 2021)
• Minimus Maximus - A Brief History of Minimum Wage (April 2, 2021)
• California Wage Theft Protection Act (2012)

Tim Bowles
October 15, 2021

Preventing Contractor Loss for Sub Failure to Pay Employees

A.B. 1701, effective January 1, 2018, made "direct contractors" liable for all wages and benefits that any subcontractor at any level on a job fails to pay its workers, plus accrued interest. The resulting law, Labor Code 218.7, applies to any California contractor having a direct contract with an owner "for the erection, construction, alteration, or repair of a building, structure, or other private work."

SB 727, effective January 1, 2022 as Labor Code 218.8, will make direct contractors also liable for penalties and liquidated damages for subcontractor non-payment of workers if the contractor:

• "Had direct knowledge of the subcontractor's failure to pay the specified wage, fringe or other benefit payment or contribution";

• Did not monitor required wage and benefit payments by periodically reviewing subcontractor payroll records containing the information on payroll documents compliant with Labor Code 226(a);

• Did not take steps to rectify such a situation upon learning of it, including withholding sufficient payment from the subcontractor; or

• Prior to making final payment to the subcontractor for work performed, did not obtain a sworn written statement confirming the subcontractor has paid all wages and benefits due its employees for the project.

The expanded law will still permit the Labor Commissioner and other third parties including labor unions to enforce these provisions against direct contractors via administrative or civil actions. However, subcontractor employees may not bring an action themselves.

Take-aways: Direct contractors should include in their written subcontractor agreements:

1. Confirmation of subcontractor obligations to pay workers for all wages and benefits;

1. As a condition of payments for services, requirement to provide the direct contractor full payroll and benefits information for each preceding pay period; and

1. Set-aside, indemnification, withholding and/or bonding provisions to promptly compensate a direct contractor for payments to subcontractor workers under the Act.

Best practices also include qualified legal guidance to formulate the contract terms establishing these safeguards.

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

See also:

• Bullet Dodging Part 4 - Building Subcontractors' Exemption From the Strict New Limits on Who is "Independent" (October 31, 2019)
• What's in a Name? - Employers Must Heed Pay Stub Technicalities (May 17, 2019)
• Correct Pay Stubs Save Bucks - Learn California's Specific Pay Stub Requirements to Avoid Penalties (May 3, 2018)
• What's New for 2018 Contractors Liable For Wages And Benefits If Subcontractors Don't Pay Their Employees (January 11, 2018)

Helena Kobrin
October 14, 2021

Employing Private Caregivers

California regulates the wages and hours of workers through a series of "Wage Orders." Wage Order 15 (WO 15) covers employees engaged in so-called "household occupations," including "personal attendants."

Personal attendants are nannies, babysitters and certain caregivers who work in a private household to supervise, feed or dress a child or a person who by reason of advanced age, physical disability, or mental deficiency needs supervision. WO 15 directs that an attendant must not perform a "significant amount" of other duties, e.g., cleaning or doing laundry, without defining "significant."

The Domestic Worker Bill of Rights (DWBR), effective January 1, 2014, remedied that omission, setting the "significant" other-work prohibition at more than 20 percent of the attendant's total weekly hours.

The DWBA also added overtime pay for some, but not all, WO 15 personal attendants, including live-in workers, after 45 hours/week or nine hours/day. Attendants who are close family members, babysitters under 18 and "casual" babysitters (those sitting for a minor child on an irregular or intermittent basis and not in the business of babysitting) are not entitled to overtime.

Federal law complicates the picture, requiring third-party employers such as staffing agencies to pay overtime to "companions" after 40 hours/week. A companion is someone who provides: (a) fellowship, and (b) protection to an elderly, ill, injured, or disabled person for at least 80 percent of the workweek and provides "care," i.e., assistance with daily living activities, no more than 20 percent of the time.

The federal rule does not apply to companions whom a patient or the patient's family or guardian engages directly.

The potential conflict between these two sets of rules makes paying overtime to any California domestic worker qualifying as a personal attendant or companion after nine hours in a day or 40 hours in a week the prudent course of action.

Take-Aways: Uninformed private and agency employers can become ensnared in legal complaints. We have even represented a 97-year-old woman facing an unpaid overtime claim by a caregiver. Thus, personal attendant employers should take appropriate action including:

• Have a written employment agreement with the caregiver specifying expected or scheduled work hours, duties, compensation and the "at-will" nature of the relationship (i.e., the caregiver can resign or be released from employment at any time, with or without cause or advance notice). For live-in caregivers, the agreement should include the person's obligation to vacate the premises promptly when employment ends for any reason.

• Have the caregiver enter all working hours and meal start and end times in a written log, confirm its accuracy each day, and promptly clear up any discrepancies.

• Pay the caregiver by the hour at least twice a month, at a rate agreed in advance.

• Pay the caregiver at least minimum wage for all "hours worked," defined by law as any time an employee is "suffered or permitted to work," i.e., all time the caregiver is on duty. This may include the hours the caregiver is sleeping.

• Pay all earned overtime.

• Seek and obtain qualified attorney guidance on sound documentation and full legal compliance.

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

See also:

• The Basics of Overtime - Five Rules for California (April 27, 2018)
• The Need for Written Employment Agreements -Well-Drafted Contracts Eliminate Uncertainty and Ambiguity (March 30, 2018)
• Cautionary Tales Episode 7 - Paying Live-In Caregivers "Daily Flat Rate" Can Be a Very Expensive Mistake (November 24, 2017)

Helena Kobrin
October 8, 2021

Complaining Employee to Collect For Psychiatric Center's Retaliation

For the relative ease in proving wrongdoing, unlawful retaliation against an employee for having complained of improper workplace conduct or conditions continues as the "go-to" accusation of choice against employers.

A worker seeking recovery for alleged discrimination or harassment must establish the employer's motivating hostility toward that person's race, gender or other protected classification. Not so with retaliation; the worker need only show that the employer fired her or him for having sincerely complained about some mistreatment regardless of any actual or intentionally offensive action.

The federal Equal Employment Opportunity Commission (EEOC) has announced a case-in-point: Texas-based Woodlands Psychiatry must pay $22,500, adopt corrective policy and conduct company-wide training stemming from its owner's termination, via text, of a chemical dependency counselor/employee for having filed a charge of discrimination.

The EEOC's regional attorney stated, "Title VII [of the Civil Rights Act of 1964] protects workers who participate in the EEOC process, especially those who seek redress from discriminatory or retaliatory conduct in the workplace by filing a charge of discrimination." The agency's lead attorney on the case added, "Retaliation against employees who report discrimination is unlawful. The Commission aggressively investigates, and, if necessary, prosecutes employers who violate Title VII's anti-retaliation provision."

While EEOC extends federal anti-retaliation standards to employers with 15 or more on payroll, the Department of Fair Employment and Housing (DFEH) enforces California's equally stringent prohibitions against businesses with as few as five employees.

Take-Aways: Through a printable brochure and other materials, EEOC offers important guidance to business for preventing retaliation claims. The DFEH posts similar assistance.

• Understand management responsibilities. Retaliation is illegal against applicants, employees or former employees for:
  • filing a complaint of discrimination with your business;
  • filing a charge of discrimination with a federal, state or local agency;
  • participating in a discrimination investigation or lawsuit (for example, serving as a witness); or
  • opposing discrimination (for example, threatening to file a charge or complaint of discrimination).
• Don't take out frustrations on the complaining employee. Treat the employee as if he or she had never reported discrimination, assisted with a discrimination investigation or lawsuit or opposed discrimination.
• Treat employees consistently. Before making employment decisions that may negatively affect the complaining employee, act consistently with past practice or with valid justification for treating the employee differently.
• Explain rules and expectations to employees. Ensure that employees understand your business's discrimination policies. Inform employees that retaliation is illegal and will not be tolerated.
• Establish an open door policy. Encourage employees to share any concerns about discrimination with management. Respond promptly and effectively to discrimination questions, concerns and complaints.
• Uphold policy across-the-boards. Ensure that company policies are followed and enforced consistently.

Tim Bowles, Cindy Bamforth or Helena Kobrin can assist with additional information.

See also:

• Tracking Down Discrimination - EEOC 2020 Report Retaliation, Disability Claims Predominate (April 16, 2021)
• Workplace Discrimination Prevention-California's Fair Employment and Housing Act, A History (March 26,2021)
• Employee Terminations - Firing Low-Performing Workers While Limiting Repercussions (April 20, 2018)
• Unlawful Retaliation Defined (September 21, 2016)

Tim Bowles
October 1, 2021