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

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)

Tim Bowles
October 22, 2021

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

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

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

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

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

The U.S. Equal Employment Opportunity Commission (EEOC) enforces federal laws prohibiting sexual harassment and retaliation.

On September 24, 2021, the EEOC announced suit against general construction company Focus Companies Group of Nevada (Focus) for sexual harassment, retaliation, and “constructive discharge” (i.e., forced resignation).

The complaint alleges Focus violated federal law by subjecting female workers to forcible kissing, coercive touching of male genitalia, unwanted grabbing and groping of body parts, sexually offensive and vulgar language, and lewd facial expressions.

The EEOC also contends Focus management threatened the women with acts of violence if they did not acquiesce.

The lawsuit seeks monetary damages for the victims and injunctive relief to prevent and correct discriminatory practices.

EEOC regional director Michael Mendoza commented, “It is imperative that employers, especially those whose workforce has been historically male, understand their responsibility to implement strong anti-harassment and retaliation policies. The responsibility falls on the employer to create a harassment-free working environment for all its employees.”

Take-Aways:

Employers must effectively respond to employee sexual harassment complaints. In conjunction with skilled sexual harassment prevention training and properly-crafted anti-harassment policies, management should ensure workers correctly report and managers properly investigate, document and resolve various forms of unlawful harassment, discrimination and retaliation.

We provide live webinar prevention training for all California employees for a flat fee. We also provide anti-harassment policies within our employee handbook. Contact officemgr@tbowleslaw.com for more information and to schedule your webinar.

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

See also:

• Workplace Coordination, Defined – Our Employee Policy Handbook & Forms for 2021 (July 22, 2021)
• Cautionary Tale 35 – Over the Borderline – State Agency Settles Sex and National Origin Case for $450,000 (September 13, 2019)
• Cautionary Tale 33 – Choke the Jokes – EEOC Settles Tex-Mex Restaurant Servers' Sexual Harassment Case for $40,000 (August 15, 2019)

Cindy Bamforth
September 30, 2021

California law requires employers with five or more on payroll to provide sexual harassment prevention and resolution training to all managers and employees every other year. We offer an interactive live webinar as a superior alternative to impersonal point-and-click online training.

We have developed our presentation from over 15 years of delivery, with experienced, practical instruction on identification, prevention and internal resolution of workplace harassment, discrimination, and retaliation.

The compelling reasons to offer a live, interactive webinar to your workforce include:

• Interaction with trainer, with ability to apply principles to specific work conditions;

• Immediate answers to questions, benefitting all attendees;

• Employees typically pay closer attention;

• Proper emphasis on relative importance;

• Preventative measures emphasized;

• Interactive training confirms company commitment to effectively addressing and preventing unlawful or inappropriate workplace conduct; and

• By the bulk of feedback we’ve received, our sessions are engaging, even fun!

See also:

• Cautionary Tale Episode 45, Old Boy Kill-Joy, EEOC Sues Employer Sexual Harassment and Retaliation (September 30, 2021)
• Required Training on Sexual Harassment Prevention (May 2019)
• The #metoo Movement’s Impact (April 2019)
• Stopping the Jerks and Lurks (April 2019)

Contact us TODAY for more information, pricing or to schedule your workforce’s webinars at (626) 583-6600 or officemgr@tbowleslaw.com

September 30, 2021