Most Non-Competes Are Unenforceable in California

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

Our COVID-19 Forms, Constant Updates

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 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.

Employers Should Not Ignore Records Requests

California requires employers to provide an accurate, itemized statement with each wage payment or twice monthly. Labor Code 226(a) specifies wage statement contents, such as ● employer's name and address; ● employee's name; ● last four digits of employee's social security number or other suitable identifying number; ● hours worked; ● pay rates; and ● gross and net wages earned. See, Ignore at Your Own Peril - Overlooked Pay Stub Requirements Can Lead to Trouble (February 23, 2018).

Labor Code 226(f) and (h) permits a current or former employee to "inspect or copy" such pay records within 21 calendar days of written request. An employer's failure to make the deadline may entitle the worker to recover a $750 penalty plus reasonable attorney's fees.

Likewise, Labor Code 1198.5(b)(1) allows a current or former employee "to inspect and receive a copy of personnel records that relate to the employee's performance or to any grievance concerning the employee." Response must be within 30 days of the date the employer receives the written request, with a possible agreed extension to no more than 35 days. Section 1198.5(k) permits the employee to recover a $750 penalty against a non-complying employer plus attorney fees and costs.

Counsel representing employees commonly send such requests as a preliminary to litigation. Records showing compliant wage practices can convince an attorney there is nothing to pursue. Even if an employer's records are incomplete, it is better to respond as required and maintain communication toward resolution of any issues. Ignoring such requests invites penalties and suspicion and does nothing to head off a lawsuit.

See also:

• What's New for 2019 - California's Clarification on Employee Access to their Payroll Records; Copy That (November 29, 2018)
• Correct Pay Stubs Save Bucks - Learn California's Specific Pay Stub Requirements to Avoid Penalties (May 3, 2018)

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

Helena Kobrin
July 16, 2021

CAL/OSHA Revises Written COVID-19 Prevention Program

Last November, Cal/OSHA required nearly all employers to implement an effective written COVID-19 Prevention Program (Model CPP) pursuant to mandatory emergency temporary standards (ETS).

On June 29 2021, Cal/OSHA published its revised Model CPP to comport with the newest June 17, 2021 ETS revisions.

The revised Model CPP:

• Provides new instructions for documenting an employee's fully vaccinated status;

• Eliminates physical distancing requirements except during certain outbreaks;

• Eliminates use of face coverings for fully-vaccinated workers;

• Requires employers to maximize workplace ventilation and air filtration;

• Eliminates requirement to disinfect workplace items between uses by others;

• Requires employers to provide respirators, such as N95 masks, for voluntary use to non-vaccinated employees upon request;

• Mandates additional training on face coverings, respirator use, and how to access testing and vaccination;

• Requires employers to inform employees that "vaccination is effective at preventing COVID-19, protecting against both transmission and serious illness or death"; and

• Redefines workplace exclusion after close contact, particularly for fully-vaccinated employees.

Employers must adopt these pandemic-related protocols as part of their state-mandated injury and illness prevention program through the use of the state model or their own programs. Thus, employers should carefully review the revised Model CPP and consult with an employment attorney for further assistance.

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

See also:

• Easy Does it - Workplace COVID Standards Slowly Lessening (June 25, 2021)
• Workplaces Return, but not Home Yet - California's COVID Restriction Cut-Backs from June 15, 2021 (June 18, 2021)
• Good Workplace Policy is Boss - Our Template Handbook & Forms for 2021 (May 28, 2021)
• Stay-Away "Exclusion" Pay - Require Pandemic Wages for Positive Test or Workplace Exposure (March 18, 2021)

Cindy Bamforth
July 15, 2021

California Employers Must Protect Outdoor Workers from Heat Illness

Heat illness is a serious, potentially fatal condition resulting from the body's inability to cope with heat. The two main types are heat exhaustion (e.g., dizziness, headache, sweaty skin, fast heartbeat, nausea, vomiting, weakness, and/or cramps) and heat stroke (e.g., red, hot dry skin, high body temperature, confusion, fainting and/or convulsions).

As outdoor temperatures rise, employers must implement and monitor heat illness protection standards. For example, employers must ●track the weather and check for approaching heat waves; ●provide shade when the temperature reaches 80 degrees; and ●implement additional high-heat procedures when the temperature reaches or exceeds 95 degrees, such as enhanced communication, vigilance and water consumption.

Cal/OSHA has issued a June 28, 2021 news release urging all employers to take these steps to protect outdoor workers from heat illness:

• Plan - Maintain a written heat illness prevention plan with emergency response procedures;

• Train - Train all employees and supervisors on heat illness prevention;

• Water - Provide fresh, pure, and cool drinking water free of charge so that each worker can drink at least one quart per hour and encourage them to do so;

• Rest - Encourage cool-down rests in the shade for at least five minutes whenever needed. Workers should never wait until they feel sick before doing so; and

• Shade - Provide proper shade to cool off at any time when temperatures exceed 80 degrees.

Cal/OSHA announced: "It is important for employers to assess the risk of heat illness based on a worker's duties and take appropriate steps to prevent them from getting sick. Regardless of the level of risk, all outdoor workers must be protected equally and employers with outdoor workers must maintain an effective heat illness prevention plan year-round."

To download training materials and access further resources, please visit Cal/OSHA's Heat Illness Prevention page, its Heat Illness Prevention online tool or the 99calor.org website.

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)
• Cautionary Tales Episode 32 - Protect Workers from injury - It's the Law - and the Right Thing to Do (July 19, 2019)
• Cautionary Tales Episode 14 - Workplace Illness and Injury Prevention Programs are Mandatory in California (July 19, 2018)

Cindy Bamforth
July 9, 2021

Appeals Court Overturns Wal-Mart’s $102 Million Penalty and Damages Judgment

Under the California Private Attorney General Act (PAGA), current or former employees can sue employers in a “representative” capacity for alleged Labor Code violations. PAGA claims, filed by employees when the state declines to do so, seek civil penalties to be shared 75 percent for the state of California and 25 percent between the plaintiff and other employees.

The $102 million award in Magadia v. Wal-Mart Associates, Inc. for alleged missed meal premiums and paystub violations demonstrates the proliferation of PAGA cases as one of the greatest dangers to California employers. See, Cautionary Tale Episode 42 The PAGA Monster Is Hungry: Non-Compliant California Employers at High Risk under Special Law(May 14, 2021).

Yet, in a narrow victory for employers, the federal appeals court recently overturned that award, finding Wal-Mart’s paystubs did not violate Labor Code 226’s nine basic requirements by listing certain specialized information semi-monthly.

The court also invalidated a $70,000 meal premium violation under Labor Code 226.7 for failure to pay an extra hour for non-provision of breaks, observing that Magadia had no such claim personally and, under federal law, could not then assert that claim for other workers. The court ordered this meal claim back to state court, where there may be a different result under California law.

Take Aways: While Wal-Mart may have dodged bullets in this case, the decision reinforces that all businesses, regardless of size, must ensure they are applying California employment law correctly. An employer’s intentional actions to evade the law are not required; business-killing PAGA liability can arise from management inattention to compliance fine points alone.

A company’s receipt of a worker’s pre-lawsuit PAGA letter to the Labor and Workforce Development Agency (LWDA) requires immediate action, including consultation with experienced legal counsel. For example, by taking steps within 30 days of the letter, an employer may be able to cure certain alleged violations and avoid liability altogether.

See also:

• Please: Document Workplace Meal Breaks – Require Employees to Clock Out and Back In on Their Meals (June 4, 2021)
• The Peril of Ignorance: Know and Comply – California’s Itemized Paystub Requirements (May 6, 2021)
• Cautionary Tales Episode 16 – Spa Nailed for $1.2 Million, Wage Theft (August 1, 2018)

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

Helena Kobrin
July 2, 2021

Workplace COVID Standards Slowly Lessening

Last November, Cal/OSHA issued mandatory emergency temporary standards (ETS) to prevent the workplace spread of COVID-19. The standards applied to most California workers not covered by the Aerosol Transmissible Diseases (ATS) standard. See What’s New in 2021 – Infection Prevention Direction Cal/OSHA COVID-19 Emergency Temporary Standards (February 5, 2021).

The revised June 17, 2021 ETS now incorporate the more relaxed California Department of Public Health (CDPH) face coverings and physical distancing requirements. For example:

Fully Vaccinated Employees

• Need not be tested or excluded from work after close contact; and
• Do not have to wear face coverings indoors except in certain outbreaks or other settings, i.e., public transit, K-12 educational facilities, health care and long-term care facilities, or correctional and detention facilities and shelters. Employers must, however, document employee vaccination status.

Non Fully-Vaccinated Employees

• Must be offered free COVID testing if exhibiting symptoms;
• Must wear face coverings indoors and in vehicles with others. (Face coverings are now defined as surgical/medical procedure masks, respirators, or two layers of material with no visible holes or openings. Scarves, ski masks, bandanas and single layer fabrics will no longer suffice); and
• Shall receive respirators, such as N95 masks or equivalent, for voluntary use at no cost upon request to the employer. For one month only (to July 17, 2021), businesses can obtain N95 respirators free of charge at https://saferatwork.covid19.ca.gov/n95-distribution/

All Employees Regardless of Vaccination Status

• Do not have to wear face coverings outdoors (except during certain outbreaks);
• May wear a face covering without retaliation; and
• Need not physically distance unless encountering a workplace hazard or major outbreak.

Additionally, employers must now review the Interim Guidance for Ventilation, Filtration, and Air Quality in Indoor Environments and evaluate ventilation and additional air cleaning systems.

Employers must continue to: ● implement an effective written COVID-19 Prevention Program; ● screen employees for symptoms; ● notify public health departments of outbreaks; ● notify employees of exposure and close contacts; ● offer testing to certain individuals after potential exposures; ●continue quarantine and exclusion pay requirements; and ● re-implement physical distancing and barriers during certain outbreaks.

Cal/OSHA has issued a limited set of FAQs highlighting these revisions as well as an updated comprehensive set of FAQs.

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

See also:

• Workplaces Return, but not Home Yet – California’s COVID Restriction Cut-Backs from June 15, 2021 (June 18, 2021)
• Good Workplace Policy is Boss – Our Template Handbook & Forms for 2021 (May 28, 2021)
• Stay-Away “Exclusion” Pay – Require Pandemic Wages for Positive Test or Workplace Exposure (March 18, 2021)

Cindy Bamforth
June 25, 2021

California’s COVID Restriction Cut-Backs from June 15, 2021

On June 15, Governor Newson has terminated the March, 2020 “stay at home” and May, 2020 “blueprint for safer economy” executive orders that had imposed an all-county tier severity system for physical distancing, business capacity, and other limitations.

However, by Department of Public Health (DPH) order effective June 15, a lowered level COVID-related restrictions remain in place including:

● Guidance for the Use of Face Coverings, among other things requiring masks for unvaccinated persons in indoor public settings and businesses and masks for all persons on public transit, schools and other youth settings, healthcare settings, correctional facilities and homeless shelters;

● Requirements for Mega Events in the DPH “Beyond the Blueprint for Industries and Business Sectors” issue, i.e., large crowds greater than 5,000 (indoors) and 10,000 (outdoors) attendees, including proof of vaccination or pre-entry negative test; and

● Various COVID-related guidance memos for the opening and administration of schools and youth centers.

This latest DPH order also directs employers to comply with Cal/OSHA’s Emergency Temporary Standards (ETS), updates effective June 17 and, for certain healthcare providers, Cal/OSHA’s Aerosol Transmissible Diseases standard. For more on the ETS, see COVID-19 Emergency Temporary Standards FAQs. For example, employers must continue to provide face coverings to all employees and “for now, must continue to ensure that all employees comply with workplace COVID prevention standards regardless of vaccination status.”

The governor’s June 15 order re-affirms that local health officers remain free to establish and implement more restrictive or intensive measures than the statewide standards.

A number of counties have announced they are following the state’s guidelines: ● Amador, ● Butten, ● Calaveras, ● Colusa, ● Fresno, ● El Dorado, ● Kern, ● Kings, ● Lake, ● Madera, ● Marin, ● Mono, ● Napa, ● Nevada, ● Placer, ● Plumas, ● Riverside, ● San Joaquin, ● San Luis Obispo, ● Sacramento, ● San Mateo, ● Sierra, ● Siskiyou, ● Solano, ● Sonoma, ● Trinity, and ● Tulare.

Many of the localities with particular standards have been quick to issue updates. A few are electing to remain under the earlier “blueprint” tier system: ● Alpine, ● Del Norte, ● Glenn, ● Modoc, ● San Benito, ● Santa Cruz, ● Shasta, ● Stanislaus, ● Tehama, ● Ventura, and ● Yolo.

For specifics – and to our knowledge as of June 18:

City or County Effective DateExpiration Date Resources Alameda CountyJune 15, 2021Until further noticeAlameda County’s websiteAlpine CountyJune 14, 2021Until further noticeAlpine County’s websiteBerkeleyJune 15, 2021October 1, 2021City of Berkeley’s websiteContra Costa CountyJune 15, 2021Until further noticeContra Costa County’s websiteDel Norte CountyJune 14, 2021Until further noticeDel Norte County’s websiteGlenn CountyApril 27, 2021Until further noticeGlenn County’s websiteHumboldt CountyJune 15, 2021Until further noticeHumboldt County’s FAQsImperial CountyJune 15, 2021Until further noticeImperial County’s websiteInyo CountyJune 15, 2021Until further noticeInyo County’s websiteLong BeachJune 15, 2021Until further noticeLong Beach’s website Los Angeles City June 17, 2021Until further noticeLos Angeles City’s FAQsLos Angeles County(All unincorporated areas and cities in LA County except for Long Beach and Pasadena) June 15, 2021Until further noticeLos Angeles County’s websiteMariposa CountyJune 15, 2021Until further noticeMariposa County’s websiteMendocino CountyJune 15, 2021Until further noticeMendocino County’s websiteMerced CountyJune 16, 221Until further noticeMerced County’s websiteModoc CountyMarch 31, 2021Until further noticeModoc County ‘s websiteMono CountyJune 15, 2021October 1, 2021Mono County’s websiteOrange CountyJune 17, 2021Until further noticeOrange County’s websitePalm SpringsJune 15, 2021Until further noticePalm Springs’ websitePasadenaJune 15, 2021Until further noticePasadena’s websiteSan Benito CountyApril 6, 2021Until Further noticeSan Benito County ‘s websiteSan Bernardino CountyJune 15, 2021Until further noticeSan Bernardino County’s FAQsSan Diego CountyJune 15, 2021Until further noticeSan Diego County’s websiteSan Francisco City and CountyJune 15, 2021Until further noticeSan Francisco’s websiteSanta Barbara CountyJune 15, 2021Until further noticeSanta Barbara County ‘s websiteSanta Clara CountyMay 18, 2021Until further noticeSanta Clara County ’s websiteSanta Cruz CountyMay 18, 2021Until further noticeSanta Cruz County’s websiteShasta CountyJune 15, 2021Until further noticeShasta County’s websiteStanislaus CountyJune 8, 2021Until further noticeStanislaus County’s websiteTehama CountyMay 19, 2021Until further noticeTehama County’s websiteVentura CountyJune 1, 2021Until further noticeVentura County’s websiteYolo CountyMarch 23, 2021Until further noticeYolo County’s website

Thanks once again to our legal assistant Daniska Coronado for the compilation. One certainty: pandemic prevention requirements of varying strictness will continue to change, perhaps not always in the direction of reduced restrictions. Employers should confirm any particular limitations for their particular city or county locations.
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)
• What’s Even Newer in 2021 California Expands COVID-19 Paid – Detailed, Retroactive Requirements for Employers with 26 or More on Payroll (April 9, 2021)
• Pandemic Leave 2.0 – Feds Promote Expanded Paid Leave with Tax Credits, Through September 30, 2021 (March 25, 2021)

Tim Bowles
Daniska Coronado
June 18, 2021

Documenting California Rest Breaks

California employers must provide each not-exempt-from-overtime employee off-duty rest breaks based on the number of hours that employee works in a given day. An employer who fails to do so must pay the worker one additional hour of pay (i.e., premium pay) in that employee’s next paycheck. See Industrial Welfare Commission (IWC) Orders, Labor Code Section 226.7(c) and Required Meal Periods and Rest Breaks Revisited (April, 2018).

Unlike a meal period properly recorded by a worker clocking out and back in, rest breaks are paid and “on-the-clock.” Thus, even businesses scrupulously providing these minimum ten-minute off-duty periods can and do face employee claims of “rest deprivation” if management has not taken care to document the provision.

Best practices for workplace rest breaks — as well as meal periods — should thus include:

• Prominently post the applicable IWC Order(s) for worker reference to California break requirements;
• Distribute clearly written policy confirming management’s commitment to the law and specifying the break entitlements, including the extra hour of premium pay for any day with missed break(s);
• Similarly distribute written instructions for worker reporting of missed breaks and their resolution;
• Sufficiently train managers to apply company break provision policy, to ensure worker understanding of such standards, and to report any irregularities and their resolution;
• Require each worker to regularly complete a form – whether hard copy or electronic – attesting to his/her having been provided full opportunity to take all breaks within the time interval (e.g., week, pay period, or month) immediately preceding; and
• Include in that regular attestation form that any missed breaks were solely by the worker’s choice or, if not, that he/she has submitted adequate notice to payroll to confirm entitlement to the extra hour of premium pay as above.

See also:

• Keep On Providing – California Employers Must Fully Document Meal and Rest Breaks (May 13, 2021)
• Square Meal is the Deal – California Supreme Court Prohibits Meal Break Time Rounding (April 1, 2021)
• Workplace Rhythm & Cues – Our Employee Handbook & Forms for 2021 Including Updated COVID-19 Guidelines (January 21, 2021)

For further information, contact one of our attorneys Tim Bowles, Cindy Bamforth orHelena Kobrin.

Tim Bowles
June 11, 2021