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)
• 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:

• 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)

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:

• 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

With certain exceptions for specific industries, occupations, and limited situations, California Labor Code 512 and the Industrial Wage Commission Wage Orders require employers to provide non-exempt employees with a minimum 30-minute off-duty meal break starting before the end of the fifth hour of work. Employers must provide a second off-duty minimum 30-minute meal break for shifts greater than 10 hours. (“Non-exempt” means not exempt from overtime pay.)

“Off-duty” means the worker is relieved of all duties and free to leave the worksite during the meal period.

Unfortunately for business owners and management, employee lawsuits and Labor Board complaints containing a meal break deprivation claim have become a virtual epidemic over the past decade and more. A company facing such allegations may well also be at risk of many thousands in back wage and penalty liabilities.

An employer’s conscientious encouragement and promotion of meals is no protection or deterrent against such challenges if management has failed to take the simple – and vital – step of ensuring that workers clock out for the break and back in at break’s end. Without such documentation, a disgruntled former employee can be expected to push such a meal deprivation claim regardless of the truth.

On the other hand, time records routinely recorded and attested as accurate by the employee for each meal break provide solid evidence that violations did not occur. Best practice includes regular management review of such records for any omission and to promptly resolve the matter with the subject worker.

If the employee had forgotten to make the entries, then he/she should correct it personally or, with proper documentation, instruct payroll to make the adjustment.

Alternatively, if the employee missed one or more meals due to work demands on a given day (and not by personal choice), the employer will owe premium pay under Labor Code 226.7 for having caused the missed meal or meals.

Of course, employee-generated time entries can be by any number of systems – e.g., time clocks, via computer or cell phone apps, or even by hand-written notes -- so long as they accurately furnish the date and all in- and out-times. Some computer systems enable explanation of why a meal break was missed, thereby electronically informing the employer whether it owes premium pay.

Of course, another good reason to keep such records is Labor Code 1174, requiring their maintenance and safe storage and permitting the Division of Labor Standards Enforcement to “freely access” any company premises to inspect them.

See also:

• Square Meal Is the Deal - California Supreme Court Prohibits Meal Break Time Rounding (April 1, 2021)
• Cautionary Tales Episode 27 - Walmart Hit with Six Million Dollar Verdict for “Discouraging” Off-Site Meal Breaks (May 23, 2019)
• Cautionary Tales Episode 24 - Unpaid Wages and Attempt to Evade Consequences Result in Seizure of Owners’ Assets (June 16, 2019)
• Required Meal Periods and Rest Breaks Revisited - Off-Duty Time During a California Working Day (April 12, 2018)

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

Helena Kobrin
Tim Bowles
June 4, 2021

To level the playing field for those without access to workplace-based retirement plans, California is phasing in employer requirements to either:

• offer a retirement savings vehicle such as a 401(k) plan; or
• facilitate employee access to CalSavers, a state-run savings program in the form of an automatic payroll deduction Roth IRA

Affected employers must register with CalSavers and comply with specified administrative duties (see Employer FAQs ).

Registration deadlines vary by business size:

• 101 or more employees: September 30, 2020
• 51 to 100 employees: June 30, 2021
• Five to 50 employees: June 30, 2022

Employers must not encourage or discourage employee CalSavers participation, relay investment or savings-related advice, or make/match any additional contributions.

If employees take no action within 30 days of receipt of their initial CalSavers paperwork, they will be enrolled under the current default saving rate of 5% of gross pay after tax withholdings. (See Employee Program Details). Employers must show these deductions on the worker’s itemized wage statement (see California Labor Code section 226(a)(4)).

There is no employer fee for program participation. However, affected employers who fail to register within 90 days of service of a noncompliance notice shall pay a $250 penalty for each eligible employee and, after 180 days, an additional $500 per employee.

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

See also:

• The Peril of Ignorance – Know and Comply: California’s Itemized Paystub Requirements (May 6, 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)

Cindy Bamforth
June 4, 2021

With Memorial Day and July 4 approaching, California employers should review and, as needed, update their written holiday policies.

California law does not require employers to provide or to pay for holiday time off.
However, for employers opting to offer holidays off, paid or unpaid, written policy should cover the scope of the benefit, including:

• A list of company-observed holidays;
• If offering a paid benefit, specify worker eligibility such as completion of any introductory employment period;
• Address other boundaries for such pay, such as a requirement to work or be on an excused absence on the workdays immediately preceding and following the holiday;
• Clarify that an employee who must work on a paid holiday also earns his/her pay for labors on that day;
• State how such pay works when the holiday falls on a weekend. For example, if Independence Day were to fall on a Saturday on Sunday, specify whether pay is forthcoming for the federal or state weekday off on that three-day weekend or if the company will instead skip such pay altogether for that calendar year.

As holidays must be tied to a calendar event, policy should also correctly regulate any additional “personal” or “floating” holiday. Best practice can thus include:

• connect the additional paid day off to another specific event, such as the employee’s birthday or hire-date anniversary or to require the employee to take that time off within the same week as the event; and
• ensure the worker then actually takes that designated day off

The Labor Commissioner FAQs offer additional detailed information including the effect of holidays on overtime calculations.

Take-Aways:

When a business opts to observe holidays, clearly and in writing state the rules and procedures in advance, separate from paid vacation, sick pay and other leave benefits.

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

See also:

• California Paid Vacation can be no Holiday – State Rules Ban “Use It or Lose It” (May 21, 2021)
• For the Record – Sound Management Practices for Personnel Documentation (August 14, 2020)
• Give Me a Break! – Time Off for Fire Fighting, Crime Victims, Drug Rehab, School Visits, and More (June 22, 2018)

Cindy Bamforth
May 28, 2021