Employers planning end-of-the-year holiday parties should maintain sensible guidelines to carry off a safe and successful gathering. Management must ensure the event acknowledges production and promotes morale without becoming a fertile ground for harassment incidents or worse.

Some DO’s and DON’Ts:

DO: Make an actual determination that the company can safely hold a party consistent with prevailing COVID-19 government restrictions and common sense;
DO: Make participation voluntary so people who are uncomfortable can avoid attending without fear of consequences;
DO: Adopt and announce advance dress code guidelines appropriate to the workplace, e.g., dress not likely to be offensive to other races, cultures, religions, etc.;
DO: Plan a health-prudent celebration that minimizes any potential for unwelcome, inappropriate conduct, such as drunkenness or harassment of co-workers. The time of day may help. A luncheon is more likely to avoid unwanted romantic advances and other improper conduct than a dinner;
DO: Have company executives, supervisors, and managers set a good example of appropriate behavior; and
DO: Enforce company guidelines during the event when needed, for instance requiring an offending employee to leave.***DON’T: Permit improper conduct by supervisors, managers, or executives.
DON’T: Ignore or dismiss offensive behavior, including so little as off-color banter, even if you personally do not find it offensive. Inaction is tantamount to condoning bad conduct and greatly increases the possibility of receiving a harassment claim; and
DON’T: Allow alcohol consumption. Doing so lessens the ability to maintain a professional event and can increase potential exposure to company liability for drunken conduct by an employee. If you feel you must make alcohol available, provide advance rules to prevent unwanted incidents.

See also:

• Holiday Party Survival 101 – Keep in Your Lane Idiot (November 27, 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)
• The Boundaries of Holiday Office Gatherings – Team Acknowledgment, Yes; Bad Taste, Alienation and Harassment, No: (November 22, 2017)

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

Helena Kobrin
December 10, 2021

The California Fair Chance Act (the Act) seeks to enable job applicants with criminal histories to obtain gainful employment. Under the Act, employers with five or more on payroll cannot obtain criminal background information until after extending a conditional offer of employment. Upon receipt of any criminal conviction information, the employer must engage in the “fair chance process” i.e., evaluating the applicant’s criminal history as well as any mitigating circumstances before rescinding the job offer.

The California Department of Fair Employment and Housing (DFEH) recently began using technology designed to conduct mass searches of online job advertisements for statements that violate the Act, such as “No Felons” or “Must Have Clean Record.” In a single-day search, the DFEH found over 500 unlawful job postings and has sent cease-and-desist letters to the violators.

DFEH Director Kevin Kish announced the process in a recent press release: “Using technology to proactively find violations of the state’s anti-discrimination laws is a powerful strategy for our department to protect Californians’ civil rights.”

The DFEH has also recently issued a toolkit to assist employers in complying with the Act. It includes:

• Sample “fair chance process” procedural forms and instructions;
• Suggested language to add to job advertisements and applications;
• Frequently-asked questions; and
• An informational video about the Act

The DFEH also plans to release an interactive training and an online app in 2022.

Take-Aways:

Covered employers should ensure their job advertisements and employment applications comply with the Act. They should also educate and train their supervisors and human resources team on all of the Act’s required procedures.

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

See also:

• Find Out What’s New in 2022 – Annual Seminar for Employers Covering Employment Legal Essentials and New Workplace Laws for 2022 (November 24, 2021)
• Good Workplace Policy is Boss – Our Template Handbook & Forms for 2021 (May 28, 2021)
• New for 2018 California Adopts Ban the Box Law – Ban The Box California 2018 Means Employers Cannot Seek Criminal Record Until After Offer to Hire Applicant (October 27, 2017)

Cindy Bamforth
December 10, 2021

California Labor Code section 515.6 exempts certain licensed physicians and surgeons from overtime compensation upon receipt of specified minimum hourly compensation.

California’s Department of Industrial Relations (DIR) has announced its rate increase for this minimum, effective January 1, 2022, to $91.07, up from $86.49, reflecting the 5.3% increase in the California Consumer Price Index for Urban Wage Earners and Clerical Workers.

To avoid California overtime premium rates, employers will need to pay such eligible professionals that minimum hourly rate, keeping accurate track of hours worked.

An exempt physician or surgeon must also meet each of the Labor Code section 515.6 skills and duties criteria. Among these, the employee must be “primarily engaged” (more than 50% of the time) in duties requiring licensure.

California Business and Professions Code section 2052 specifies such duties, requiring a medical license for anyone who “diagnoses, treats, operates for, or prescribes for any ailment, blemish, deformity, disease, disfigurement, disorder, injury, or other physical or mental condition of any person.”

Physicians and surgeons paid on a salary basis will not qualify for this exemption, but may otherwise qualify for the administrative, executive or “learned profession” exemptions from overtime. Each category possesses its own distinct requirements.

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

Cindy Bamforth
December 2, 2021

On January 1, 2022, California minimum wages will increase as mandated by Senate Bill (SB) 3: $15.00/hour for employers with 26 or more; $14.00/hour for those with 25 or fewer employees; See California’s Gradual Increases in Minimum Wage, to Reach $15.00 Per Hour by January 1, 2022 (April 20, 2016).

The California cities and counties below have ordinances with higher or more extensive minimums.  Employers must review and comply with the rules for locality in which their employees work. The UC Berkeley Center for Labor Research and Education publishes regular updates.

Covered employers must also conspicuously post an updated wage notice/bulletin for each applicable jurisdiction. The above city/county link(s) provide respective current notices.

See also:

• California Summer Minimum Wage Rate Increases (June 10, 2021)
• Good Workplace Policy Is Boss – Our Template Handbook & Forms for 2021 (May 28, 2021)

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

Helena Kobrin
Daniska Coronado
November 24, 2021

On November 5, 2021, the federal Occupational Safety and Health Administration (OSHA) issued Emergency Temporary Standards (ETS) implementing the President’s ordered mandatory vaccinate-or-test rules. The ETS directs all employers with 100+ on payroll to require worker vaccination or weekly testing.

Numerous state governments, private employers, and employees immediately challenged the ETS in federal appeals courts around the country. On November 6, the Fifth Circuit Court of Appeals (covering Texas, Louisiana, and Mississippi) temporarily barred implementation of the ETS pending full judicial review.

The Fifth Circuit extended that prohibition on November 12, terming the vaccination-or-test mandate a “one-size-fits-all sledgehammer” that : (1) “grossly exceeds OSHA’s statutory authority”; (2) includes both too many workers (same rules regardless of working conditions and actual danger of exposure) and not enough (“grave danger” only for 100+ employees?); (3) is not addressing an “emergency” when the pandemic is nearly two years in; and (4) is unconstitutional.

On November 16, the Sixth Circuit Court of Appeals (Michigan, Ohio, Kentucky and Tennessee) was tasked with the full ETS review for all federal courts. The Fifth Circuit’s stay remains in effect in the meantime.

OSHA has thus suspended all ETS implementation and enforcement nationwide pending the Sixth Circuit’s decision.

Regardless of status or outcome of the federal rules, the various Cal/OSHA protocols remain in effect on mandatory vaccination for certain health care workers. See, Health Care Workers Must Vaccinate or Regularly Test (July 30, 2021); and Tighten Up – Required Vaccination for Certain Health Care Workers (August 13, 2021).

Take-Aways:

While employers should keep an eye on how this federal challenge plays out, those health care organizations affected should continue to enforce Cal/OSHA’s vaccination-or-test workplace requirements. Consulting with management-side employment counsel on best solutions to meet applicable, ever-changing and sometimes confusing requirements is sound practice.

See also:

• Religion and Mandatory Workplace Vaccination (November 5, 2021)
• Making Mandatory Mandatory – The Coming Vaccination Requirement for Larger Employers (September 10, 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)

Helena Kobrin
November 19, 2021

Thanks to the strong support of our clients and colleagues, Bowles Law is Pasadena Weekly's "Best" for 2021, our third year running. We strive to continue delivery of capable services in the often contentious arena of personnel management.

Again, thank you! Onward.

Tim, Cindy, Helena and staff
November 12, 2021

California Labor Code section 515.5 exempts certain computer software professionals from overtime compensation upon receipt of specified minimum compensation.

California’s Department of Industrial Relations (DIR) has announced its rate increase for this minimum, effective January 1, 2022, to $50.00, up from $47.48. Alternatively, an otherwise qualified salaried employee is eligible on minimum annual compensation of $104,149.81, up from $98,907.70, payable at least once monthly at no less than $8,679.16.

An exempt computer professional must also meet each of the Labor Code section 515.5 high-level skills and duties criteria. Among these, the employee must be “primarily engaged” (more than 50% of the time) in intellectual or creative work requiring the exercise of discretion and independent judgment such as:

• applying systems analysis to determine “functional specifications” of hardware, software or systems
• designing computer systems or programs; and/or
• documenting, testing, creating or modifying computer programs related to computer systems software or hardware design

Although these workers need not be paid overtime premium under California law, employers should further ensure they meet the comparable federal law exemption, which includes a less restrictive definition of “primary” duty, a lower hourly/salaried threshold, and similar skills and duties tests.

Such computer professionals may also qualify for the administrative, executive or “learned profession” exemptions from overtime. Each category possesses its own distinct qualifications.

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

Cindy Bamforth
November 10, 2021

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 or Helena Kobrin.

Tim Bowles
November 5, 2021

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-Aways:

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