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)

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

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)

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:

• 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