The U.S. Equal Employment Opportunity Commission’s (EEOC) 2020 Enforcement and Litigation Report tallies its workplace discrimination charges processed between October, 2019 through September, 2020.

Retaliation charges top the list as they have in recent years, with 37,632 claims constituting 55 percent of the 67,448 charges the EEOC received, followed by disability, race, sex and age.

The EEOC recovered just over $106 million for claimants over the reporting period, resolving 165 lawsuits and filing 93 new ones.

Retaliation and disability also top the California Department of Fair Employment and Housing’s (DFEH) latest list of complaints filed for 2019. The DFEH received 22,584 complaints that year, settling 710 cases for a total $14,834,753.

An educated workforce is management’s best frontline defense to prevent unlawful practices, including regular “zero-tolerance” sexual harassment training. California law requires two hours of such training for managers, supervisors and executives and one hour for non-supervisory employees every two years. See, Deadline Nigh: January 1, 2021 - Workplace Harassment Prevention Training Webinar (November 2021).

Thorough training should cover all forms of discrimination, harassment and retaliation, including for example race, gender, religion, age, sexual preference, national origin, and disability.

Another essential is up-to-date anti-discrimination, harassment and retaliation policies to promote and maintain a professional and productive work environment.

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)
• Live and Let Live - Preventing Political Backlash in the Workplace (October 23, 2020)
• Cautionary Tale Episode 37: Workplace Culture Clash – California Challenges Cisco Systems for Color (“Caste-Based”) Discrimination (September 4, 2020)

Helena Kobrin
April 16, 2021

Employers must verify identity and work authorization for U.S.-based citizens and noncitizens using “Form I-9 Employment Eligibility Verification” (I-9 Form). Potential consequences for noncompliance can include civil fines of up to $ 23,331 per occurrence as well as criminal prosecution and imprisonment.

Last year, Department of Homeland Security (DHS) announced that employers and workplaces operating remotely due to COVID-19 could perform I-9 document inspections remotely over video link, fax or email so long as they obtained, inspected and retained copies of the documents within three business days of hire and entered “COVID-19” as the reason for the physical inspection delay in the Form’s additional information field.

The DHS recently announced extension of this flexibility from April 1 to May 31, 2021.

Thus, employees hired on or after April 1 and who work exclusively in a remote setting due to COVID-19 are temporarily exempt from Form I-9’s physical document inspection requirements until they undertake non-remote employment “on a regular, consistent, or predictable basis,” or until DHS terminates this policy.

Employers who avail themselves of this option “must provide written documentation of their remote onboarding and telework policy for each employee.”

Once normal operations resume, all employees using remote verification must report to their employer within three business days for an in-person document verification, at which time the employer should add “documents physically examined” with the date of in-person inspection to the Form’s additional information field.

Affected employers must monitor the DHS and U.S. Immigration and Customs Enforcement (ICE) websites for further updates.

See also:

• Oy Vey, Now What? Employers Must Use New I-9 Form Starting May 1, 2020 (April 25, 2020)

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

Cindy Bamforth
April 15, 2021

Effective March 29, 2021, California Labor Code 248.2’s “COVID-19 Supplemental Paid Sick Leave” law (SPSL) requires employers with 26 or more total employees, i.e., nationwide, to provide up to 80 hours of supplemental paid sick leave benefits to eligible/covered California workers through September 30, 2021. The new law also covers providers of in-home supportive services (see California Labor Code 248.3).

SPSL revives and significantly expands last year’s COVID-19 supplemental paid sick leave law (Assembly Bill [AB]1867), which applied mostly to food sector workers and employers with over 500 employees.

As explained in the Labor Commissioner’s FAQs, the new SPSL includes:

Eligibility

A covered employee must be unable to work or telework for any of the following reasons:

• Caring for yourself: The employee is subject to a government-directed COVID-19 quarantine or isolation period, has been advised by a healthcare provider to quarantine, or is experiencing COVID-19 symptoms and seeking a medical diagnosis; or

• Caring for a family member: The employee is caring for a family member subject to COVID-19 quarantine or isolation or has been medically advised to do so, or is caring for a child whose school or place of care is closed or unavailable due to COVID-19; or

• Vaccine-related: The covered employee is attending a vaccine appointment or is experiencing vaccine-related symptoms.

Employers may not request confirming medical certification for any of these grounds.

Pay Amounts, Rates and Timing

• Covered, eligible employees may take up to 80 hours of COVID-related paid sick leave (not to exceed $511 per day and $5,110 in total) immediately upon an oral or written request to their employer.

• Part-time employees with a regular weekly schedule must be paid the number of hours normally scheduled to work over two weeks.

• Part-time employees with a variable schedule must be paid 14 times the average number of hours worked per day over the past six months.

• Non-exempt employees must be paid the highest of: employee’s pay rate for the workweek in which leave is taken; state minimum wage; local minimum wage: or average hourly pay for the preceding 90 days (excluding overtime pay).

• Exempt employees must receive the same rate of pay as wages calculated for other paid leave time.

• Paid leave taken in 2020 under AB 1867 or the federal Families First Coronavirus Response Act (FFCRA) does not count towards the new SPSL leave bank.

Retroactivity: Employers must make retroactive payments for prior leave taken under any of the above eligible reasons from January 1, 2021 upon the covered employee’s oral or written request. Retroactive payments must be made “on or before the payday for the next full pay period” after receiving the request.

Model Notice/ Wage Statement:

• Employers must provide written notice to all covered employees. The Labor Commissioner’s model notice in English and Spanish may be used for this purpose.

• Itemized wage statements must list the amount of available SPSL separately from regular paid sick leave. See FAQ No.20 for more information.

Leave Interactions:

• Employers may not require a covered employee to use other paid or unpaid leave before using SPSL.

• However, employers may require employees to first exhaust their SPSL bank before paying COVID-19 related exclusion pay under Cal/OSHA’s COVID-19 Emergency Temporary Standard (ETS). See, Stay-Away “Exclusion” Pay Required Pandemic Wages for Positive Test or Workplace Exposure (March 18, 2021).

• Employers may also credit any paid leave (except for regular non-COVID-related California paid sick leave) taken by a covered employee between January 1, 2021 and March 28, 2021 for any of the above eligibility reasons.

Prohibited Retaliation/Discrimination: Retaliation or discrimination against a covered employee requesting or using SPSL is strictly prohibited.

California employers should review new section 248.2 and the accompanying FAQs to confirm compliance steps, including closely coordinating with payroll companies, downloading and distributing the model notices, and training managers on the new law.

See also:

• Pandemic Leave 2.0 - Feds Promote Expanded Paid Leave with Tax Credits, Through September 30, 2021 (March 25, 2021)
• One Certain Constant: Change - New Retroactive Paid Pandemic Leave Requirement (March 19, 2021)
• What’s New in 2021: Paid Pandemic Leave in the New Year - Some Benefits Optional, Some Mandatory (January 15, 2021)

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

Cindy Bamforth
April 9, 2021

The California Labor Commissioner has assessed Irvine’s Perfect Point Corp. dba South Coast Gymnastics and its owner, Xiaoping Li, $1.3 million for wage and hour violations affecting 28 coaches and administrative staff after a COVID-19 compliance inspection turned into a payroll audit of the preceding three years.

Labor Commissioner Lilia García-Brower stated: “California law requires that workers be paid for all hours worked. Anything less is wage theft. My office is committed to ending wage theft and recovering stolen wages.”

Finding some workers earned less than $5/hour, the commissioner issued citations of $590,689 for minimum wages, contract wages, meal and rest periods, and waiting time penalties, and $342,765 in interest for employees. The assessments also include $386,996 in civil penalties for minimum wage, pay period, paystub, and meal and rest break violations as well as so-called liquidated damages, a doubling of the minimum wage underpayment.

Notably, under California Labor Code 558.1 business owners, directors, officers, or managers can be held personally liable for such wage and hour violations. If the company cannot pay a full assessment, the Labor Commissioner can thus go after the personal assets of such individuals.

Take-Aways:

Employers should take regular care to confirm and ensure wage and hour compliance before the government comes knocking. That knock may well require a company to open many doors for inspection. South Coast Gymnastics’ wide-ranging and potentially “business-busting” audit arose out of a seemingly limited check on COVID precautions measures.

See also,

• Cautionary Tales Episode 36: Is Gig up for Car Wash Company? – First AB 5 Suit Challenging Independent Contractor Classification (July 31, 2020)
• Cautionary Tales Episode 31: Residential Care Facility Not Feeling the Love – 708,521 Reasons to Pay Workers Legally (July 12, 2019)
• Cautionary Tales Episode 27: Walmart Hit with Six Million Dollar Verdict for “Discouraging” Off-Site Meal Breaks (May 23, 2019)

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

Helena Kobrin
April 8, 2021

With two exceptions (New Zealand, 1894; Australia, 1896), no country had a minimum wage law until the 20^th Century. Instead, employers paid what they contended were “just (or fair) wages” on the purported mutual consent of their workers. If employees agreed to labor at the take-it-or-leave-it rates business offered, U.S. courts ruled they were powerless to challenge the sanctity of that private contract.

With the Progressive Era (1896 to the 1920s), religious and political groups attacked such “just wages” arguing that the vast majority of employees lacked the bargaining power to negotiate a livable wage. In the United States and throughout the industrialized world, factory conditions were also notoriously harsh and workdays long. Not uncommonly at the time, American businesses hired woman and children for lower wages than men. By 1910, two million children worked up to 20 hours a day in this country. Exhausted, many were killed or injured on the job.

In the 1920s, American lawmakers sought to improve working conditions in their states. By 1925, fifteen states had passed minimum wage laws, including California at 16 cents an hour.

President Roosevelt’s New Deal fundamentally changed the nationwide employment landscape. The 1938 Fair Labor Standards Act (FLSA) – overcoming an earlier Supreme Court invalidation of federal labor conditions legislation -- established the first federal minimum wage at 25 cents an hour. The law also imposed overtime pay (“time and a half”) after a mandated 40-hour regular workweek. The Act also introduced the classification of “exempt (from overtime)” and “non-exempt” employees as well as outlawed many forms of child labor.

By 1943, the Labor Department had raised the federal minimum wage to 40 cents an hour. It hit $1.00/hour in 1955. Federal minimum wage has been $7.25 an hour since 2009. Although each U.S. state has the power to set a higher minimum wage than the federal rate, none can set a lower one.

The FLSA, American wage regulations, and state enactments have evolved into a complex body of state and federal employment law requiring that employers take careful measures to ensure compliance.

At least ten nations still lack minimum wage standards for private business employment, including Ethiopia, Qatar, Singapore, Somalia, United Arab Emirates and Yemen.

See also:

• What’s New In 2021: California Minimum Wage Rate Increases (December 23, 2020)

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

Tim Bowles
April 2, 2021

The California Supreme Court has ruled that employers may not round worker time entries for meal breaks, in contrast to rules permitting rounding for start and end of workday time entries. Kennedy Donohue v. AMN Services, Inc. (Donohue) (February, 2021).

The Donohue Court observed that California and federal law permit employers to round an employee’s time entries at the beginning and end of a day if done by a fair and neutral method that will result in the employee being paid for all hours worked over a period of time. Such rounding is permissible because “for purposes of calculating wages, counting slightly fewer minutes one day can be made up by counting a few more minutes another day.”

In contrast, the Court found that such rounding practices cannot apply to the 30-minute meal break required by Labor Code 512 and the Industrial Wage Orders before the end of five hours and the second meal break required before the end of 10 hours in a workday.

The Donohue Court concluded “the health and safety concerns underlying ‘meal period’ provisions distinguish the meal period context from the wage calculation context, in which the practice of rounding time punches was developed.” Rounding meal time entries thwarts that health and safety purpose since “a shorter or delayed meal period one day cannot be offset by a longer or earlier meal period another day.”

In addition, rounding may deprive an employee from receiving the one-hour premium pay required under Labor Code 226.7 and the Wage Orders for missed, short or late meal periods.

Employers should eliminate rounding meal break times and consult with an employment attorney on any advisable remedial measures to address mistaken past practices.

See also,

• Required Meal Periods and Rest Breaks Revisited – Off-Duty Time During a California Work Day (April 12, 2018)
• Brinker: California’s Meal Break Breakthrough – Employers are No Longer the Lunch Police (May 1, 2012)

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

Helena Kobrin
April 1, 2021

Now with over 40 million residents and some 950,000 employers, California leads the nation in the size and diversity of its workforce. Every employee in the state holds protections against discrimination, harassment and retaliation, primarily through the Fair Employment and Housing Act (FEHA).

Such workplace rights were long in coming and hard fought. At statehood (1850), California was rife with racial inequities. The new state legislature stripped the native populations of land claims, prohibited African Americans from homesteading public land and barred Chinese children from public school.

Over the next 100 years, California’s minority population continued to boom despite repeated discriminatory backlash from the white holders of power.

From 1900 to 1930, roughly 10% of Mexico’s population migrated to California and other southwestern states. During World War II, 500,000 African Americans migrated to California to work in the state’s booming wartime economy. Through the war, Mexican and African American laborers replaced white workers who had gone off to fight. When the war ended, however, many of these laborers were dismissed. Those able to find employment were relegated to menial, low-paying positions. Job discrimination against minorities remained widespread.

In response, state lawmakers introduced the Fair Employment Practices Act (1946), proposing a ban on employment discrimination based on race, religion, color or national origin. However, it took 13 years, to 1959, to enact it. That same year, California’s Unruh Civil Rights Act also became law, entitling “all persons to full and equal accommodations, advantages, facilities, privileges or services in all business establishments, including both private and public entities.”

Regardless, local governments retained the power to restrict minorities from living in California communities. The state legislature responded with the Rumford Fair Housing Act (1963). The California Real Estate Association countered with Proposition 14 to nullify the Rumford Act and restore landlord power to deny housing to anyone. Although approved by 65% of the voters, the California Supreme Court ruled Prop 14 unconstitutional, restoring the Rumford Act.

In 1980, the Fair Employment Practices Act and Rumford Housing Act were combined and renamed the Fair Employment and Housing Act, banning employment and housing discrimination in California. The FEHA also established an enforcement agency, the Department of Fair Employment and Housing (DFEH), with the power to investigate, mediate and prosecute unlawful discrimination, harassment and retaliation complaints. The DFEH is now the largest civil rights agency in the country.

The DFEH also serves as an information and resource center for employers and employees alike. For instance, the agency has developed a library of required notices and circulars on many of FEHA’s critical aspects, for example:

• Workplace Discrimination poster
  
• California Family Rights Act (CFRA) and Pregnancy Leave poster
  
• Sexual Harassment poster
  
• Sexual Harassment factsheet
  
• Transgender Rights poster
  
• Your Rights and Obligations as a Pregnant Employee poster

The FEHA and its federal counterparts, including the Civil Rights Act of 1964 and the Americans with Disabilities Act (1990), stem from the premise that persons should be judged for their competence on the job and not by factors of race, religion and the many other characteristics deemed arbitrary and irrelevant to workplace qualification.

See also,

• Abolishing Workplace Bigotry: A Work in Progress (March 5, 2020)
• What’s New in 2020 – Time’s Up Extended – Longer Three-Year Deadline For Initiating Discrimination Claims (January 10, 2020)
• Preventing Workplace Discrimination: Accommodating Disabilities, Made Simple – New Guidelines Package Available for California Employers (August 24, 2017)

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

Tim Bowles
March 26, 2021

On March 11, 2021, President Biden signed the American Rescue Plan Act of 2021 (ARPA), extending payroll tax credits provided under the federal Families First Coronavirus Response Act (FFCRA) into Fall, 2021.

The FFCRA, which expired December 31, 2020, required two types of COVID-related paid leave:
(1) up to 80 hours of emergency paid sick leave on any one of six criteria (subject to a quarantine or isolation order; advised by a health care provider to self-quarantine; experiencing symptoms, etc.) (Emergency PSL); and
(2) up to 10 weeks more of partially paid emergency family and medical leave to care for a child whose school or place of care is closed due to COVID-19 related reasons (E-FMLA Leave).

See, Federal Coronavirus Workplace Relief - New Paid Sick Leave, Family Leave and Tax Credits Effective April 2, 2020 (March 23, 2020)

To promote an employer’s continuing voluntary provision of such paid leave benefits, the ARPA permits participating businesses to take tax credits on expanded sets of criteria for these two types of COVID-related covered leaves between April 1, 2021 and September 30, 2021.

Employers who choose to provide such optional benefits must comply with all applicable ARPA rules to qualify for the tax credits, including:

• “Reset” additional allotments of emergency paid leave: Eligible employees shall now receive a fresh 80 hours of Emergency PSL and up to an additional 12 weeks of partially-paid E-FMLA Leave between April 1 and September 30, 2021 even if they previously exhausted such allotted leaves under the FFCRA.

• Expanded grounds for Emergency PSL: Employers who opt in for these ARPA credits must provide emergency paid sick leave on time missed on any of the six grounds in the FFRCA, plus to get a COVID vaccine, to recover from adverse effects of the vaccine, or while seeking or awaiting the results of a COVID test/diagnosis due to workplace exposure or at the employer’s discretion.

• Expanded grounds for E-FMLA: Employers who opt in for the credits must provide emergency partially paid family leave for an employee caring for a child whose school or place of care is closed due to COVID-19 related reasons (the prior qualification for such leave under the FFCRA) or who meets any of the now-expanded PSL leave grounds, including the original six grounds in the FFRCA or any of the three new criteria in the above Emergency PSL bullet point.

• Increased emergency paid family leave tax credit: The ARPA increases emergency family leave paid wages from $10,000 per employee to $12,000.

• Non-discrimination requirement: Employers must provide these paid leave benefits to all workers across the boards. Thus, employers may not grant these benefits based on high earnings, full-time status or seniority. (The FFCRA is silent on this point.)

Thus, participating employers should update their policies and forms and consult with legal and tax advisors for assistance complying with these provisions of the ARPA.

See also:

• Once Certain Constant: Change - New Retroactive Paid Pandemic Leave Requirements. Revisions Coming 2021 Handbook & Forms (March 19, 2021)
• Stay-away exclusion pay required pandemic wages for positive test or workplace exposure(March 18, 2021)
• What’s New 2021: Paid Pandemic Leave In The New Year - Some Benefits Optional, Some Mandatory (January 15, 2021)

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

Cindy Bamforth
March 25, 2021

With only limited exceptions, Cal/OSHA’s mandatory COVID-19 Emergency Temporary Standards (ETS) (effective November, 2020) apply to all California employers. See, What’s New in 2021: Infection Prevention Direction CAL/OSHA COVID-19 Emergency Temporary Standards (February 5, 2021)

Exclusion Pay: The ETS require covered employers to provide employee pay and to maintain seniority and all other rights and benefits during absences due to:

• a positive COVID test; or
• potential workplace COVID exposure

The ETS and their frequently-asked questions advise:

• The exclusion pay only applies if the worker is otherwise available and physically able to work. Thus, it is not required if the absence is unrelated to actual or possible exposure such as a business closure, caring for a family member, disability, or vacation.

• Such pay only applies if the employer is unable to have the employee work remotely while excluded from the workplace.

• Exclusion pay is only required if the COVID exposure was work-related. It is the employer’s obligation to amply investigate and document that outside exposure was more likely than not.

• If an employee is unable to work because of his/her own COVID symptoms, then that individual may be eligible for workers’ compensation or State Disability Insurance benefits but not exclusion pay.

• An employer, at least in theory, may require the employee to exhaust paid sick leave benefits before providing exclusion pay “to the extent permitted by law.” However, it is not clear that California would allow any such required use policy since its paid sick leave law does not expressly address the issue.

• Exclusion pay is limited to a standard quarantine period based on a single exposure or positive test.

• Employers may not estimate what an employee might receive through public benefits and deduct that estimate from exclusion pay.

See also:

• What’s New in 2021: One-Stop COVID SHOP – New California Website and Employer Portal (March 5, 2021)
• Cautionary Tale Episode 40 Big Stick Compliance – Cal/OSHA Fines Numerous Businesses For COVID-19 Violations (March 4, 2021)
• What’s New 2021: Getting Under The Hood – New Toolkit For Workplace Leave Compliance (February 25, 2021)

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

Cindy Bamforth
March 18, 2021