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:

• $318,200 in penalties;
• $14,895 damages and interest assessed under Labor Code 248.2 for COVID-19 PSL payable by employers of 26 or more; and
• $114,742 damages and interest assessed under Labor Code 248 levied for COVID-19 PSL for food sector workers.

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-Aways:

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:

• 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)

For further information or assistance, please contact Tim Bowles, Cindy Bamforth or Helena 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 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:

• Seniority;
• Merit;
• A production-based system; and/or
• A “bona fide factor other than sex, race, or ethnicity” (i.e., an objective factor that is job related and consistent with a legitimate business necessity, such as education, training or experience).

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:

• Evaluate and assess whether workers who perform substantially similar jobs are paid the same;
• Update job descriptions;
• Educate and train managers on how to apply this law;
• Base all compensation decisions, including salary, bonuses and commissions, solely on objective criteria that comport with the Act; and
• For any pay disparities that fit the Act’s exceptions, accurately document the legitimate justification(s) for these differences with the help of a competent employment attorney.

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

See also:

• Workplace Discrimination Prevention – California’s Fair Employment and Housing Act, A History (March 26, 2021)
• For the Record – Sound Management Practices for Personnel Documentation (August 14, 2020)
• Why Job Descriptions Matter (April 4, 2018)
• What’s New for 2018 – Salary History – Salary History is No Longer a Factor for Hiring in California. (October 20, 2017)

Cindy Bamforth
August 20, 2021

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.

See also:

• Indoor Face Coverings Resurrected – LA County Mandates More Masks (July 29, 2021)
• Workplace Coordination, Defined – Our Employee Policy Handbook & Forms for 2021 (July 22, 2021)
• Easy Does It – Take Two – CAL/OSHA Revises Written COVID-19 Prevention Program (July 15, 2021)

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).

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:

• Revisit meal and rest break policies and practices to confirm compliance;
• Train all supervisors and managers to comply with meal and rest/recovery obligations;
• Have non-exempt employees regularly sign attestations that will flag any improperly provided breaks;
• Ensure payroll personnel properly calculate and timely issue all premium payments at the correct pay rate – not just the hourly rate; and
• Consider working with experienced legal counsel on auditing prior pay practices and making any necessary remedial adjustments.

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

See also:

• Good Workplace Policy is Boss – Our Template Handbook & Forms for 2021 (May 28, 2021)
• Please: Document Workplace Meal Breaks – Require Employees to Clock Out and Back In on Their Meals (June 4, 2021)
• The Basics of Overtime – Five Rules for California (April 27, 2018)
• Do the Math – California Supreme Court Sets Out New Formula for Overtime – When “Flat Sum” Bonuses Paid (March 22, 2018)

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.

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-based education.

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, 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:

• The “workers” affected include “all paid and unpaid persons serving in health care … settings who have the potential for direct or indirect exposure to patients/clients/residents or SARS-CoV-2 airborne aerosols.” Affected workers with “indirect” exposure could include clerical, administrative, and billing personnel;
• Proof of vaccination is limited to a “COVID-19 Vaccination Record Card” (issued by the Department of Health and Human Services Centers for Disease Control & Prevention or World Health Organization [WHO] Yellow Card) which includes name of person vaccinated, type of vaccine provided and date last dose administered) or a photo or other electronic link to the card (including QR code);
• Facilities must have a plan for tracking worker vaccination status with records made available, upon request, to the local health authorities;
• Workers who are not fully vaccinated, or for whom vaccine status is unknown or documentation is not provided, must be considered unvaccinated;
• All affected facilities must strictly adhere to current CDPH Masking Guidance, with acute health care and long-term care facilities to supply approved respiratory protection devices (e.g., “an N95 filtering facepiece respirator”) and other health care facilities to supply FDA-cleared surgical masks. Vaccinated individuals are not exempted from such requirements;
• Asymptomatic unvaccinated or incompletely vaccinated workers are required to undergo diagnostic screening testing (PCR or antigen) at least once weekly. “More frequent testing improves outbreak prevention and control and is encouraged, especially with antigen testing”; and
• Affected facilities should have a test tracking plan and conduct workplace contact tracing. Facilities must report tracing results to local public health departments. The order states: “There are IT platforms available that can facilitate these processes for facilities.”

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

See also:

• Indoor Face Coverings Resurrected – LA County Mandates More Masks (July 29, 2021)
• Workplace Coordination, Defined – Our Employee Policy Handbook & Forms for 2021 (July 22, 2021)
• Easy Does It – Take Two – CAL/OSHA Revises Written COVID-19 Prevention Program (July 15, 2021)

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.

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:

• How wearing a mask can slow the viral spread;
• When and what type of mask to wear (including cloth, surgical, N95 and KN95);
• How to wear a mask properly; and
• Special considerations for persons with communication difficulties or certain disabilities

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.

Take-Aways:

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:

• Easy Does It – Take Two (July 15, 2021)
• Easy Does It (June 25, 2021)
• Keep It To Yourself (April 16, 2020)
• What’s New In 2021– Infection Prevention Direction CAL/OSHA COVID-19 Emergency Temporary Standards (February 5, 2021)

Cindy Bamforth
July 29, 2021

In an ideal employer-friendly world, business could require workers to sign agreements barring their competing with the company upon termination. California, however, bans most non-competes in the single, unequivocal sentence of Business and Professions Code 16600: “[With very limited exceptions], every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void.”

While section 16600 generally renders non-competition agreements unenforceable, the exceptions are:

1. Barring employees from misappropriating an employer’s trade secrets and other confidential information in a competing business (e.g., soliciting customers or patients from employer’s confidential list); and

1. Requiring associates as a condition of part ownership in a professional practice to reasonably limited non-competition on their departure and sale back of that part interest. Business and Professions Code 16601.

Section 16600’s ban on employee non-competes has existed since 1941. Other states have been catching up, with different levels of prohibition.

Congress has unsuccessfully sought to create a national non-compete law through numerous bills introduced in recent years. Latest is the Workforce Mobility Act, pending in both houses.

Concurrently, Biden Administration’s July 9, 2021 executive order directs various federal agencies to implement multiple pro-competition initiatives.

Take-Aways:

Know what is legally permitted before implementing employee non-competes. California permits trade secret non-disclosure and non-appropriation agreements but bars non-competes. Stay tuned regardless on the federal developments in this area.
See also:

• Workplace Coordination, Defined (July 22, 2021)
• Between a Rock and a Hard Place - When It’s Time to Call Your Lawyer (April 27, 2018)
• The Need for Written Employment Agreements - Well-Drafted Contracts Eliminate Uncertainty and Ambiguity (March 30, 2018)

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

Helena Kobrin
July 23, 2021

Through 18 months and counting, the pandemic has brought one constant for California employers: change.

Since its initial directive last November, Cal/OSHA has regularly revised and expanded business’s required protocols to check COVID-19’s proliferation.

No sooner had the agency issued on June 29, 2021 its revised COVID-19 Prevention Program (Model CPP) did the California Department of Public Health (CDPH), on July 26, order all health care providers – including dental offices -- to verify the COVID vaccination status of all workers in direct or indirect contact with the public and, for those unvaccinated, to require COVID testing at least once per week.

The CDPH went further a week later, on August 3 ordering certain health care providers – including hospitals, surgery centers, and medical clinics – to require COVID vaccination status of all their workers in direct or indirect contact with the public, eliminating the minimum weekly testing alternative for those facilities.

Our office is assisting California employers to stay abreast of this shifting legal landscape by revising accordingly our COVID package of policies, protocols and forms. For set fees, this package now includes:

• COVID-19 Return to Work Checklist (updated July 28, 2021);

• Cal/OSHA Model COVID Prevention Policy (updated June 29, 2021);

• Voluntary and Mandatory Vaccination Policies (updated August 27, 2021);

• Mandatory Vaccination Policy for Dental Offices (Re: Covid-19 Pandemic) (updated August 17, 2021);

• Infectious Disease Control Policy (updated July 28, 2021);

• Hygiene and Safety Policy (updated July 28, 2021);

• Mandatory COVID Notices (updated July 29, 2021), including notice of COVID exposure; notice to workers’ compensation carrier; and notice to local health department;

• Optional Families First Coronavirus Response Act Form (updated April 1, 2021); and

• COVID-19 Supplemental Paid Sick Leave Model Notice (updated April 2021; required for employers with more than 25 on payroll).

See also,

• Tighten Up, Required Vaccination for Certain Health Care Workers (August 13, 2021)
• Health Care Workers Must Vaccinate or Regularly Test (July 30, 2021)
• Indoor Face Coverings Resurrected – LA County Mandates More Masks (July 29, 2021)
• Workplace Coordination, Defined – Our Employee Policy Handbook & Forms for 2021 (July 22, 2021)

CONTACT US TO ORDER NOW
To order or for more information, contact Office Manager Aimee Rosales at 626.583.6600 or email her at officemgr@tbowleslaw.com.

July 22, 2021