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:

• 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)
• 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)

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.

Law Offices of Timothy Bowles
July 22, 2021

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)
• 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