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State and federal laws validly prohibit businesses from discriminating against disabled persons. In California, theUnruh Actprovides that disabled people "are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever." Federally, theAmericans with Disabilities Act (ADA)prohibits disability discrimination.
State and federal laws validly prohibit businesses from discriminating against disabled persons. In California, the Unruh Act provides that disabled people "are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever." Federally, the Americans with Disabilities Act (ADA) prohibits disability discrimination.
While most businesses would never intentionally discriminate over someone's disability, companies may be exposed to claims for having inadvertently made website access difficult or impossible for visually or hearing-impaired individuals or others, such as epileptics. On behalf of select disabled persons, a number of law firms specialize in making cookie-cutter demands for payment and other actions over such supposed violations, with concentrations in certain states. See also: Surfin' USA: Website Accessibility Lawsuits are Alive And Well Under The ADA (January 29, 2021) and Businesses 'sitting ducks' for lawsuits because websites aren't ADA compliant (February, 6, 2019).
There are many reported cases of abuse. In lieu of documenting actual accessibility issues and assisting in their good faith resolution, offending attorneys, showing little or no idea of a site's actual accessibility, apparently hope they can scare at least some targeted businesses into promptly paying their way out of unfounded accusations.
Website owners should ensure that their websites are compliant, but how? Even courts are split on whether and how disability laws apply. For example, in January 2019, the federal Ninth Circuit Court of Appeals (over California and other western states) ruled in favor of requiring website accessibility so disabled customers could order from Domino's Pizza. Then, in April 2021, the Eleventh Circuit (over Florida, Georgia and Alabama) ruled that only brick and mortar businesses are subject to federal disability laws and the lack of website accessibility for the supermarket website did not prevent the plaintiff from accessing the store or its wares.
Despite Justice Department proposals years ago, the feds have long punted on adopting guidelines for accessibility compliance. Instead, many courts (but not all) and the DOJ rely on the non-governmental Worldwide Web Consortium's widely published standards, the technically complicated "Content Accessibility Guidelines (WCAG) 2.1."
While not techies, we have guided client companies to sources for achieving and maintaining WCAG compliance. Assistance is available for example from accessiBe, See the white stick figure on blue background in the bottom right corner of our website. That company offers daily website compliance monitoring, updating every 24 hours for new site content.
For more information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
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Helena Kobrin
September 3, 2021
The Labor Commissioner has made an example to deter industry-wide wage violations,settlingwith San Francisco-based Z & Y Restaurant for $1.6 million on alleged underpayment of 22 workers.
The Labor Commissioner has made an example to deter industry-wide wage violations, settling with San Francisco-based Z & Y Restaurant for $1.6 million on alleged underpayment of 22 workers.
The Commissioner found the employer illegally kept servers' tips; paid workers less than minimum wage and no overtime; did not provide split shift premiums for working both the lunch and dinner shifts; and violated California's paid sick leave law and record-keeping obligations.
Labor Commissioner Lilia Garcia-Brower admonished that: "A significant amount of the payment due to workers, in this case, is from stolen tips" and "California law prohibits employers from taking tips left by customers for servers."
The Commissioner's office promptly investigated after workers complained to community-based organizations Asian Americans Advancing Justice- Asian Law Caucus and the Chinese Progressive Association.
Citations of this magnitude can destroy a business. It is essential to pay the required minimum wage, overtime, and tips to hourly workers. Employers must correctly implement paid sick leave benefits and issue complete and accurate pay stubs in compliance with California law.
For more information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
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Cindy Bamforth
August 26, 2021
The California Labor Commissioner has citedBodega Latina Corporation $447,836 for the failure of three southern California El Super grocery stores to provide supplemental paid sick leave (PSL) for 95 workers impacted by COVID-19. The violations included requiring people to work while ill, telling some workers in COVID isolation to apply for unemployment instead of paying PSL, not allowing employees to quarantine after exposure to family members with a positive test, and delaying leave payments
The California Labor Commissioner has cited Bodega Latina Corporation $447,836 for the failure of three southern California El Super grocery stores to provide supplemental paid sick leave (PSL) for 95 workers impacted by COVID-19. The violations included requiring people to work while ill, telling some workers in COVID isolation to apply for unemployment instead of paying PSL, not allowing employees to quarantine after exposure to family members with a positive test, and delaying leave payments for months.
Properly providing benefits would have saved these employers:
Identifying supplemental PSL as "a tool to stop the spread of COVID-19," Labor Commissioner Lilia García-Brower stated: "Supplemental paid sick leave is intended to protect workers from being forced to choose between their health and providing for their families. These violations expose workers, their families and El Super's customers to unnecessary health risks."
Supplemental PSL went into effect on March 29, 2021 retroactive to January 1, 2021. Employer obligations to provide these benefits will expire September 30, 2021 unless, as expected with the current spread of the Delta variant, the legislature extends it.
Take Away: Employers must stay on top of and comply with required COVID-19 protocols and benefits. We continue to advise employers on the mandates, recently updating our templates to the changing state standards.
See also:
For further information or assistance, please contact Tim Bowles, Cindy Bamforth orHelena Kobrin.
Helena Kobrin
August 20, 2021
In their bid to attract qualified job candidates in today's high demand- short supply labor market, employers must strictly comply with theCalifornia Fair Pay Act.
In their bid to attract qualified job candidates in today's high demand- short supply labor market, employers must strictly comply with the California Fair Pay Act.
The Act prohibits paying lesser wage rates to employees of the opposite sex or of another race or ethnicity for "substantially similar work" performed under similar "working conditions."
"Substantially similar work" is mostly similar in skill, effort, and responsibility and performed under similar working conditions. "Skill" refers to required experience, ability, education, and training. "Effort" refers to the necessary amount of physical or mental exertion. "Responsibility" refers to the degree of accountability or duties required in performing the job. "Working conditions" means the physical surroundings (temperature, fumes, ventilation) and hazards.
To justify paying lesser wage rates to any affected similarly-positioned worker, the employer must prove the pay differential is solely attributable to:
The Act also ● requires employers to keep pertinent employment records for three years; ● allows employees to inquire about another's compensation (although employers are not required to divulge that information); and ● permits employees to openly discuss compensation terms with each other, and/or aid or encourage their co-workers to exercise their rights without fear of reprisal.
Best Practices:
For more information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
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Cindy Bamforth
August 20, 2021
Tightening a statewide order issued only the week previous, theCalifornia Department of Public Health(CDPH) is nowordering certain health care providers- including hospitals, surgery centers, and medical clinics - to require COVID vaccination status of all "workers." Other providers, including dental offices, homeless shelters, and prisons, remain subject to theJuly 26, 2021 CDPHorder allowing unvaccinated workers as long as they COVID test at least once per week. See,Health Care Workers Must
Tightening a statewide order issued only the week previous, the California Department of Public Health (CDPH) is now ordering certain health care providers - including hospitals, surgery centers, and medical clinics - to require COVID vaccination status of all "workers." Other providers, including dental offices, homeless shelters, and prisons, remain subject to the July 26, 2021 CDPH order allowing unvaccinated workers as long as they COVID test at least once per week. See, Health Care Workers Must Vaccinate or Regularly Test (July 30, 2021).
The CDPH premises the August 5, 2021 order on California's fastest increase in "COVID-19 cases during the entire pandemic with 18.3 new cases per 100,000 people per day, with case rates increasing ninefold within two months." The order also cites the strength of the Delta variant, with viral load "roughly 1,000 times higher ... than those infected with the original coronavirus strain, according to a recent study."
The order observes that the health care facilities affected are particularly high-risk settings with "frequent exposure to staff and highly vulnerable patients, including elderly, chronically ill, critically ill, medically fragile, and disabled patients. In many of these settings, the patients are at high risk of severe COVID-19 disease due to underlying health conditions, advanced age, or both."
Concluding that vaccination is the most effective means of preventing infection, subsequent transmission and outbreaks, the order directs "all health care workers [in such facilities] must be vaccinated to reduce the chance of transmission to vulnerable populations."
A "worker" under the order is any paid or unpaid individual who works in indoor settings where (1) care is provided to patients, or (2) patients have access for any purpose, including anyone who has "the potential for direct or indirect exposure to patients or SARS-CoV-2 airborne aerosols." Workers thus include not only nurses, physicians, and others in immediate contact with patients but those "not directly involved in patient care, but who could be exposed to infectious agents that can be transmitted in the health care setting (e.g., clerical, dietary, environmental services, laundry, security, engineering and facilities management, administrative, billing, and volunteer personnel)."
A worker is exempted only upon providing the facility a signed form stating vaccination is declined (1) based on "Religious Beliefs" (undefined in the order); or (2) due to "Qualifying Medical Reasons" (signed written qualifying statement from a physician or other authorized practitioner, including the "probable duration of the worker's inability to receive the vaccine [or if the duration is unknown or permanent, so indicate])."
An unvaccinated exempt worker must test for COVID - twice weekly for acute health care and long-term care settings, and once weekly for other specified health care settings - and wear a surgical mask or approved higher-level respirator at all times while in the facility.
An affected facility must maintain adequate records of workers' vaccination or exemption status and provide them within one business day of request by a local or state public health officer. For each vaccinated worker, records must specify: "(1) full name and date of birth; (2) vaccine manufacturer; and (3) date of vaccine administration (for first dose and, if applicable, second dose)." For each unvaccinated worker, facility records must include the signed declination form with written health care provider's statement where applicable as well as testing documentation.
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Tim Bowles
August 13, 2021
On July 15, 2021, the California Supreme Court clarified the calculation for the additional hour of so-called premium pay whenever an employer fails to provide an employee with a compliant meal or rest/recovery period.Ferra v. Loews Hollywood Hotel, LLC(Ferra).
On July 15, 2021, the California Supreme Court clarified the calculation for the additional hour of so-called premium pay whenever an employer fails to provide an employee with a compliant meal or rest/recovery period. Ferra v. Loews Hollywood Hotel, LLC (Ferra).
Labor Code 226.7 directs an employer to give a nonexempt (hourly) employee within the same pay period an additional hour of premium pay at the "regular rate of compensation" for any missed, shortened or late meal or rest/recovery breaks due to unavoidable operational circumstances.
While employer Loews claimed the premium pay should constitute an additional hour of straight hourly wages, the Ferra court ruled the calculation akin to the overtime "regular rate of pay" (Labor Code 510(a)), factoring in all compensation sources (e.g., commissions, bonuses as well as hourly wages). The court applied its decision retroactively subject to any applicable statute of limitations.
Accordingly, California employers should:
For more information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
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Cindy Bamforth
August 6, 2021
At last count, I have practiced law for something like 43 years. While I don't see hanging up my spurs any time soon, the profession's rewards do not come close to the enduring satisfaction of my volunteer work in literacy and human rights in West Africa. After a near-two year pandemic-imposed hiatus and with an extraordinary team of dedicated African and American colleagues, I was able to continue that initiative over three weeks in Liberia last month.
Study Tech TrainingKakata, LiberiaJuly 14, 2021
Red Light MarketPaynesville, LiberiaJuly 14, 2021
Liberian National Student Union (LINSU) LeadershipJuly 16, 2021
At last count, I have practiced law for something like 43 years. While I don't see hanging up my spurs any time soon, the profession's rewards do not come close to the enduring satisfaction of my volunteer work in literacy and human rights in West Africa. After a near-two year pandemic-imposed hiatus and with an extraordinary team of dedicated African and American colleagues, I was able to continue that initiative over three weeks in Liberia last month.
These efforts began in 2005 with a one-week trip to Ghana from which I have never fully returned. From an initial broad initiative to educate and train young leaders on the 30 articles of the United Nations Universal Declaration of Human Rights (UDHR), we have come to focus wholly on Article 26, the right to relevant, competency-basededucation.
Our African Literacy Campaign is under the banner of Applied Scholastics International, an organization uniquely qualified to offer the solution to illiteracy through the proven effective learning methods of American author and humanitarian L. Ron Hubbard, widely known as "Study Technology" or "Study Tech."
The trip, July 3-26, reaffirmed the vital importance and promise of the Campaign. Liberia is one of the "poorest" nations on Earth, but that's only if viewed economically. The heart and determination of people there is world class.
As widely reported in FrontPageAfrica and allAfrica.com, we had the opportunity and privilege of introducing Study Tech to leading government ministers, educators, and student leaders on an unprecedented scale. We have also laid the foundation to establish a permanent teacher training center to assist national and regional development for years to come.
Many of you have contributed over years to make this work possible. To all of our supporters, thank you very, very much.
While it's now back to my day job servicing our clients and local community, our plans and programs continue to ensure the Campaign can and will contribute significantly to development of one of the most challenged regions in human family. That's some real pay.
Tim Bowles
August 5, 2021
On the rising wave of Delta variant cases, theCalifornia Department of Public Health(CDPH) isordering all health care providers- including hospitals, surgery centers, medical clinics and dental offices - to verify the COVID vaccination status of all "workers" and, for those unvaccinated, to require COVID testing at least once per week. The order also directs strict masking requirements for all healthcare workers whether or not vaccinated.
On the rising wave of Delta variant cases, the California Department of Public Health(CDPH) is ordering all health care providers - including hospitals, surgery centers, medical clinics and dental offices - to verify the COVID vaccination status of all "workers" and, for those unvaccinated, to require COVID testing at least once per week. The order also directs strict masking requirements for all healthcare workers whether or not vaccinated.
The July 26, 2021 order stems from California's "fastest increase in COVID-19 cases during the entire pandemic with 11.2 new cases per 100,000 people per day, with case rates increasing fivefold within two months. The Delta variant, which is very highly contagious and possibly more virulent, is currently the most common variant causing new infections in California."
The order states that "unvaccinated persons are more likely to get infected and spread the virus, which is transmitted through the air. Most current hospitalizations and deaths are among unvaccinated persons. Thanks to vaccinations and to measures taken since March 2020, California's health care system is currently able to address the increase in cases and hospitalizations. However, additional statewide facility-directed measures are necessary to protect particularly vulnerable populations, and ensure a sufficient, consistent supply of workers in high-risk health care and congregate settings."
The directive thus applies to acute health care and long-term care facilities (e.g., hospitals, skilled nursing facilities), high-risk congregate settings (e.g., adult and senior care facilities, homeless shelters, correctional facilities), and "other health care settings," including surgery centers, medical clinics, and dental offices.
The essentials include:
For more information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
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Tim Bowles
July 30, 2021
Under Cal/OSHA's revised June 17, 2021 Emergency Temporary Standards(ETS), vaccinated employees only had to wear face coverings indoors for certain outbreaks or in other settings,i.e.,public transit, K-12 educational facilities, health care and long-term care facilities, or correctional and detention facilities and shelters.
Under Cal/OSHA's revised June 17, 2021 Emergency Temporary Standards (ETS), vaccinated employees only had to wear face coverings indoors for certain outbreaks or in other settings, i.e., public transit, K-12 educational facilities, health care and long-term care facilities, or correctional and detention facilities and shelters.
However, after the subsequent rise in Delta-variant cases, the Los Angeles County Public Health Department revised its public health order on July 16 and July 22, 2021 to require face masks to be worn by all, regardless of vaccination status, while inside public settings and businesses. All such locations/businesses must also post clearly visible and easy to read signage to communicate these requirements.
The county's public health order expressly overrides the more permissive ETS masking regulations and directs that exempt employees (such as those who cannot feasibly wear a mask while performing their work) must be tested for COVID-19 at least twice per week unless they provide proof of full vaccination or of recovery from laboratory-confirmed COVID-19 within the past 90 days.
LA County concurrently updated its face mask publication, which includes:
San Mateo County has a similar masked mandate in all county-operated facilities.
Several other counties (Alameda, Contra Costa, Fresno, Marin, Sacramento, San Francisco, Santa Barbara, Santa Clara, Sonoma, and Ventura) as well as the City of Berkeley are strongly recommending all individuals wear face masks in all indoor facilities.
On July 27, 2021, the CDC recommended fully vaccinated people wear a mask indoors in areas of substantial or high transmission, and on July 28, 2021, the California Department of Public Health added a new recommendation for universal masking indoors statewide.
Takeaway:
At a minimum, employers should revise or issue a temporary modification to their written COVID-19 prevention programs to comply with any applicable face mask mandates.
For more information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
See also:
Cindy Bamforth
July 29, 2021