Employee termination is usually a delicate task. Mishandled firings can lead to a nightmare of costly and time-consuming accusations. Yet keeping failing employees out of fear of lawsuits can destroy workplace production and morale.

To reduce the likelihood of post-employment litigation, employers should:

• Avoid issuing company policies and agreements that unduly restrict the employer’s right to terminate;
• Make the company’s internal dispute resolution system readily accessible;
• Document performance problems and management’s efforts to resolve them;
• Ensure management treats any faltering employee the same as others in such situations;
• Consult with competent employment counsel, especially on more contentious situations, for guidance on the termination process and its documentation;
• Pay all wages due on the last day of employment;
• Secure employment practices liability insurance to protect against frivolous suits; and
• Consider offering a severance agreement.

Properly drafted severance agreements can effectively eliminate wrongful termination lawsuits. In exchange for a fair amount of severance pay (in addition to earned wages and accrued vacation benefits) the departing employee agrees to release all claims, real or imagined, known or unknown, including wrongful termination, discrimination, harassment, retaliation, breach of contract and disputed wages.

When offering severance, employers must fulfill all requirements to ensure courts and government agencies will fully honor the agreement. For example, an employer with 20 or more on payroll must provide a departing employee who is 40 or older: (i) up to 21 days to consider and sign the waiver, and if desired, to have it reviewed by an attorney; and (ii) even after accepting, another seven days to change his/her mind and rescind the agreement. Although an employer must wait the 21 days to withdraw the offer, the employee can choose to sign the agreement on the spot or at any time before the deadline is up.

For businesses with less than 20 employees and/or when the departing worker is under age 40, the waiting and rescission periods are not required. The best practice here would be to permit a few business days to allow the employee to consider the terms, with or without legal counsel.

Take-Aways:

Implementing proper written workplace policies, procedures and forms can go a long way to prevent questionable lawsuits from departing employees intent on retribution. Our employment forms package includes an overview memo on administering a severance offer, a sample severance agreement and a sample termination letter. We also assist with specific terminations upon request.

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

See also:

• Between a Rock and a Hard Place – When It’s Time to Call Your Lawyer (April 28, 2018)
• Employee Terminations – Firing Low- Performing Workers While Limiting Repercussions (April 20, 2018)

Cindy Bamforth
September 15, 2021

With the reported surge and perseverance of Delta variant cases, the Biden administration has directed the Department of Labor and its Occupational Health and Safety Administration (OSHA) to develop emergency regulations for larger private employers (more than 100 on payroll) to require vaccination or weekly testing for every worker. The proposal includes mandatory paid time off for employees to obtain vaccination. Once issued, the expanded rules will affect an estimated 80 million individuals.

While the initiative is sure to have its detractors, Supreme Court precedent has long supported such mandatory directives. In Jacobson v. Massachusetts (1905), a Court majority ruled against an individual who had been fined $5 for refusing a mandatory smallpox vaccine for himself and his son. Justice Harlan wrote:

"The defendant insists that his liberty is invaded when the state subjects him to fine or imprisonment for neglecting or refusing to submit to vaccination; that a compulsory vaccination law is unreasonable, arbitrary, and oppressive, and, therefore, hostile to the inherent right of every freeman to care for his own body and health in such way as to him seems best; and that the execution of such a law against one who objects to vaccination, no matter for what reason, is nothing short of an assault upon his person.

"But the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good.”

Today’s Supreme Court is likely to uphold that precedent for mandatory COVID vaccination initiatives. For example, last month Associate Justice Amy Coney Barrett declined to invalidate an Indiana University vaccination mandate following a lower court ruling against the challengers that had cited Jacobson.

Take-Aways:

With COVID’s continuing persistence, employers of any size should monitor closely the expansion of “mandatory mandatory” vaccination directives at all governmental levels. See, e.g., https://www.osha.gov/coronavirus for the coming federal rules as above. With the vaccines now widely available and gaining greater certification, the prevailing issue is not whether businesses should reopen as it was a year ago. Focus now is upon balancing public health and safety measures with managers and workers understandably tired of precautions as they return to pre-pandemic life.

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

See also,

• Staying Abreast Workplace Pandemic Policies & Protocols – Our COVID-19 Forms, and Constant Updates (August 27, 2021)
• 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)

Tim Bowles
September 10, 2021

Job candidates and human resources professionals have the unenviable challenge of conducting productive online job interviews throughout the pandemic.

According to a 2021 Zenefits survey of over 1,000 hiring managers, some common mistakes job seekers are making include:

• arriving late to the virtual interview or experiencing technical difficulty; consuming food or drink;
• not having a suitable digital background;
• criticizing previous employers;
• using meaningless jargon such as “motivated” or “innovative”;
• not explaining work gaps; and
• not asking enough questions about the position or the company.

California hiring managers must also avoid making mistakes of their own, such as:

• Recording the interview, especially without consent;
• Asking for salary or criminal history;
• Requesting social media account access;
• Obtaining information concerning sex/gender, pregnancy, sexual orientation, gender identity or gender expression;
• Requesting date of birth, eye or hair color, or birthplace;
• Inquiring about race, religion, national origin, mental or physical disability, genetic information or marital, military or veteran status; and
• Discussing the applicant’s COVID-19 vaccination status as this could improperly reveal disability-related information. (Even employers with mandatory vaccination policies should proceed with caution. The best approach is to state in the job posting and announce during the interview that anyone hired for this position must show proof of vaccination or have valid medical or religious reasons to the contrary.)

Employers should use a standard set of questions for each candidate and periodically re-train interviewers on acceptable and unacceptable employment inquiries.

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

See also:

• Know Your Boundaries – New Employer Restrictions on Hiring Notices and Interviews Starting July 1, 2020 (June 12, 2020)
• Unusual Job Interviews – The New Normal? (May 9, 2019)
• Why Job Descriptions Matter (April 4, 2018)
• Job Interviewer Guidelines – How to Find the Qualified Candidates Without Violating Their Rights (June 9, 2016)

Cindy Bamforth
September 9, 2021

By the production disruptions and safety risks posed by a worker intoxicated or stoned on the job, employers can and should maintain comprehensive written drug and alcohol policy covering testing, prevention, and the handling of suspected on-the-job drug- or alcohol-abuse.

While California’s 2018 “Adult Use of Marijuana Act” (AUMA) permits adults 21 years of age or older to possess and use marijuana for recreational purposes, the law does not alter an employer’s rights to refuse to permit or accommodate the use of marijuana in the workplace. Health and Safety Code [HSC] section 11362.45(f). Similarly, the Supreme Court of California has ruled that management may deny employment to a job applicant who tests positive for marijuana, even if the use prescribed for a medical condition. See, Ross v. RagingWire Telecommunications, Inc. (2008) 42 Cal.4th 920, 927.

Drug and alcohol policies should cover:

• Legal Medications and Illegal Drugs – Written policy should include specific definitions of legal and illegal drugs. While a business cannot discipline an employee for use of over-the-counter or doctor-prescribed medications, policy can and should also specify an employee’s duty to inform management of such drugs if their effects pose significant impact on work, ability, job performance, or the safety of the employee or others;
• Company Culture – If management wishes to periodically hold employee functions where alcohol is served (in or outside of the workplace), policy should establish guidelines including boundaries on harassing and other inappropriate or dangerous behavior;
• Testing – Management must correctly balance an employer’s rights to test for drugs and alcohol and the workers’ constitutional rights to privacy. For example, “random” tests without advance notice are only permitted in very tightly defined circumstances, e.g., transportation personnel whose intoxication would be an immediate threat to public safety;

Policy should thus explain the grounds on which a company supervisor can require such testing, including a “reasonable suspicion to conclude that an employee is in possession, control or is under the influence of alcohol, drugs, marijuana or drug paraphernalia on the job or on Company/customer premises” and that the condition may negatively affect that employee's ability to perform his or her job or threaten the safety of that employee, other workers, or the public;

Reasonable suspicion will be based on observable behavior and appearance of the subject employee, including his or her speech, motor skills, reaction time, orientation, and other factors; and

• Disciplinary Consequences for Violations – Policy should also specify the range of actions possible for violations – including warnings, suspension and termination – with decision in management’s discretion. Employers should be aware of potential issues for employees who may have rights to reasonable accommodation under the federal Americans with Disabilities Act and the California Fair Employment and Housing Act, including individuals undergoing treatment for chemical dependency.

See also:

• Banning Weed in the Workplace – California Employers May Maintain Drug- and Alcohol-Free Policies (January 18, 2018)
• High Times in California – How to Rise Above the Haze (April 7, 2017)
• Drugs and Alcohol in the Workplace (March 9, 2011)

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

Tim Bowles
September 3, 2021

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 . 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.

See also:

• What’s New 2021 Getting Under the Hood New Toolkit for Workplace Leave Compliance (February 25, 2021)
• Workplace Discrimination in a Pandemic - California’s Updated COVID-19 FAQs Call for Careful Decision Making (August 5, 2020)
• Ministers and Messengers - Supreme Court Removes Discrimination Protections for a Wide Range of Church-Affiliated Employees (July 16, 2020)

Helena Kobrin
September 3, 2021

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.

See also:

• Recalculating - California Supreme Court Increases Premium Pay for Missed Meal and Rest Breaks (August 6, 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)

Cindy Bamforth
August 26, 2021

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)
• Easy Does It – Take Two – CAL/OSHA Revises Written COVID-19 Prevention Program (July 15, 2021)

Tim Bowles
August 13, 2021