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

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

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

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

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

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:

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

The Law Offices of Timothy Bowles and ePractice Management are holding a video webinar to review the federal government’s new directions on workplace regulation, including impacts on anti-discrimination and harassment, COVID-19 control, pay policies and more.

Greater knowledge and understanding lead to greater management judgment and effectiveness. This 30- to 45-minute session will cover information vital for businesses in all fields and all workforce sizes.

Date: Wednesday, June 23rd
Time: 1:00 p.m. Eastern, 10:00 a.m. Pacific
Price: Free
Register:
https://zoom.us/webinar/register/WN_o6L12NhWSG6N0Rx_mfnBVw

Tim Bowles
June 15, 2021

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)

Tim Bowles
June 11, 2021

California minimum wage is currently $14.00/hour for larger employers (26 or more employees) and  $13.00/hour for employers with 25 or fewer. The final 2016 Senate Bill (SB) 3 increase to $15.00/hour will occur on January 1, 2022 for larger employers and January 1, 2023 for the rest. See California’s Gradual Increases in Minimum Wage, to Reach $15.00 Per Hour by January 1, 2022 (April, 2016).

The municipalities below have ordinances directing higher minimums than the current state standards, some with midyear increases as indicated.  Most have a single rate for larger and smaller employers.

Employers must review the information for their location(s) and conspicuously post the current wage notice for each applicable jurisdiction, which can be downloaded through the links above.

Companies whose employees work in more than one location also need to be aware that different minimums may apply.  A company with workers in two or more locations may find it simplest to apply the highest required minimum to all employees.

Some cities have different minimum wage laws for hotels. Effective July 1, those rates will be: Long Beach ($15.69); Santa Monica ($17.64) and City of Los Angeles ($17.64).

The UC Berkeley Center for Labor Research and Education publishes regular updates.

See also:

• Good Workplace Policy Is Boss – Our Template Handbook & Forms for 2021 (May 28, 2021)
• Minimus Maximus – A Brief History of Minimum Wage (April 2, 2021)
• What’s New In 2021: California Minimum Wage Rate Increases (December 23, 2020)

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

Helena Kobrin
June 10, 2021