California employers must not discriminate or retaliate against workers based on political activities, affiliations or speech.

• California Labor Code section 1101 bans employers from making, adopting or enforcing any rule, regulation or policy that: (i) forbids or prevents employees from engaging or participating in politics, including running for public office; or (ii) controls or directs employee political activities or affiliations.

• California Labor Code section 1102 prohibits employers from coercing, influencing or attempting to coerce or influence their employees politically by terminating or threatening to terminate any worker.

• California’s Ralph Civil Rights Act prohibits acts or threats of hate violence, including against an individual for actual or perceived political affiliation. The Department of Fair Employment and Housing (DFEH) provides a “fact sheet” poster on the scope of this law.

• The federal National Labor Relations Act (NLRA) protects union and nonunion employees against repercussion for discussing labor issues, such as how to raise minimum wage or ensure a safer work environment, as well as for endorsement or support of political candidates advocating improved labor conditions.

The California Supreme Court’s definition of protected “political activities or affiliations” broadly includes any action related to or connected with the orderly conduct and peaceful organization, regulation, and administration of government.

Violation of Labor Code 1101 or 1102 is a misdemeanor punishable for an individual by imprisonment for up to one year or fine up to $1,000 and for a corporation a fine of up to $5,000. Labor Code section 1103. An injured employee may also bring a civil suit for damages caused by the violation, including wrongful termination. Labor Code section 1105.

Violators of the Ralph Civil Rights Act are subject to civil suit for compensating money damages, punitive damages, injunction, attorney fees and civil penalty of up to $25,000.

On the other hand, as long as management abides by these restrictions, an employer may communicate with its workers, stockholders and their families about the company’s support of or opposition to state legislation, regulations or ballot measures. See, California Chamber of Commerce guideline pamphlet.

See also:

• Can’t We All Just Get Along?; Political Speech and the Workplace (October 16, 2018)
• Unlawful Retaliation Defined; Federal Government Publishes Final Enforcement Guidance on Retaliation Claims(September 21, 2016)

Tim Bowles
October 23, 2020

Purely a product of the political process, Assembly Bill (AB) 2257– through Labor Code section 2783 – has expanded exemptions from the severe “ABC” independent contractor classification test for specific industries/licensed professionals. See, Dodging the Bullet – The Industries and Professions Not Subject to California’s New Independent Contractor Restrictions (October 9, 2020).

The “specified occupations” exemption continues to apply to accountants, architects, commercial fishers working on an American vessel, dentists, direct sales salespersons (as described in Unemployment Insurance Code section 650), engineers, insurance agents, investment advisors, lawyers, physicians, podiatrists, private investigators, psychologists, securities broker-dealers or investment advisors or their agents and representatives, surgeons and veterinarians.

The new law now applies the exemption to:

• Competition judges with specialized skills or expertise in the rules of the contest, including an amateur umpire or referee

• Individuals providing underwriting inspections, premium audits, risk management or loss control work for the insurance and financial services industries

• International exchange visitor program hires

• Landscape architects

• Manufactured housing salespersons

• Newspaper distributors and carriers

To classify someone engaged in one of the above occupations as an independent contractor, the hiring entity must establish, case-by-case, that the greater weight of the Borello factors applies.

See also:

• California’s Newest Independent Contractor Law Part 3 – “Fine Artists” and Other Clarified and Expanded Professional Services Exemptions (October 10, 2020)
• California’s Newest Independent Contractor Law Part 2 – Revised Referral Agency Exception (September 24, 2020)
• California’s Newest Independent Contractor Law Part 1 – Revamped Business-to-Business Exceptions (September 17, 2020)
• Gagging the Gigs, Plan B – California Remodels Exceptions to Its Strict Independent Contractor Test (September 11, 2020)

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

Cindy Bamforth
October 22, 2020

On September 30, 2020, Cal/OSHA announced substantial fines against five Los Angeles area supermarkets for failing to update their safety measures adequately to protect their workers from COVID-19. The fined markets, all owned by Kroger Company, were Ralphs stores in Culver City, West Hollywood, Sherman Oaks, and Studio City, and a Food 4 Less in Los Angeles.

The fines range from $13,500 to $25,560. The cited violations included:

• Two stores each not reporting death of an employee from COVID-19.
• Four that allowed too many customers in their stores at the same time, thereby jeopardizing social distancing.
• Two stores not providing proper training, to include “how the virus is spread, measures to avoid infection, signs and symptoms of infection, and how to safely use cleaners and disinfectants.”
• Two stores not installing physical barriers, such as plexiglass, between employees and customers at a cheese counter and registers.

Cal/OSHA of course hopes making high profile businesses high profile violators will deter businesses statewide from cutting corners on infection limitation measures. The agency offers multi-lingual employer guidances by industry, webinars, training and other educational materials, and FAQs on such pandemic protection, recordkeeping and reporting standards.

See also:

• Suffocation Orders - California’s Safety Agency Now With Pandemic “Imminent Hazard” Shutdown Powers (October 2, 2020)
• Update California COVID Plan B - “Blueprint” Workplace Return Improving Conditions Statewide (September 25, 2020)
• Pandemic Police on Patrol - Cal/OSHA Hitting Employers Statewide for COVID-19 Non-Compliance (September 10, 2020)

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

Helena Kobrin
October 16, 2020

Effective January 1, 2021, California workers will have expanded protection for crime victim-related leaves. Assembly Bill (AB) 2992.

Labor Code section 230 currently prohibits any employer, regardless of size, from terminating, discriminating or retaliating against an employee who is a victim of domestic violence, sexual assault, or stalking, for taking time off to obtain or attempt to obtain court-related “relief” stemming from such crimes (for example, restraining orders). Labor Code 230.1, applicable to employers with 25 or more on payroll, further includes medical, shelter, counseling services and related prevention action as qualified “relief” time.

Unless not possible under the circumstances, an employee must give reasonable advance notice of the need to take such time off. A worker must provide management within reasonable time a satisfactory written certification establishing the need for any unscheduled absence, including a police report, court order, or a medical or counseling attestation.

An employee may file a complaint for claimed violation with the Division of Labor Standards Enforcement. It is a misdemeanor for an employer to refuse to rehire, promote, or restore a worker determined by a grievance procedure or legal hearing to be eligible for such rehiring, etc.

Current law does not state who is a “victim” protected against such adverse employer action. Revised sections 230 and 230.1 provide specific definitions:

• a victim of stalking, domestic violence, or sexual assault;
  
• a victim of a crime that caused physical injury or that caused mental injury and a threat of physical injury;
  
• a person whose immediate family member is deceased as the direct result of a crime; or
  
• a victim of a crime compelled to testify on the matter

Rather than just domestic- and sex-related offenses, “crime” for which such leave protection is justified will now include any California-prohibited misdemeanor or felony and any federally prohibited act of terrorism against any state resident wherever that act may have occurred.

In addition to police, medical or counseling documentation, the expanded law includes a catch-all category for the required certification confirming the need for any unscheduled absence: any other writing that reasonably verifies that the crime or abuse occurred.

See also:
:

• Workplace Pandemic Prevention - Model Employee Handbook and Forms Include Vital COVID-19 Protocols (September 3, 2020)
  
• Give Me a Break! - Time Off for Fire Fighting, Crime Victims, Drug Rehab, School Visits, and More. (June 22, 2018)
  
• Helping the Haunted – California Employers Must Accommodate Victims of Domestic Violence, Sexual Assault or Stalking. (July 7, 2017)

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

Tim Bowles
October 15, 2020

Out of Sacramento’s political process has come passage of AB 2257 and new Labor Code 2778, effective September 4, 2020, providing a broader list of professional services exemptions from the rigid “ABC” test for independent contractor classification. See, Bullet Dodging Part 2 - California’s “Professional Services” Exemption To Strict Independent Contractor Definition; Licensed Beauticians Among the Eligible (October 2019).

The earlier AB 5 version did not clearly define who qualified as a “fine artist” under this exemption. The revised law now defines the term as “an individual who creates works of art to be appreciated primarily or solely for their imaginative, aesthetic, or intellectual content, including drawings, paintings, sculptures, mosaics, works of calligraphy, works of graphic art, crafts, or mixed media.”

Under Labor Code 2778’s broader exclusions from the strict ABC criteria, still photographers, photojournalists, videographers, and photo editors who do not work on motion pictures (e.g., “theatrical or commercial productions, broadcast news, television, and music videos”), and digital content aggregators who assist them, are no longer limited to 35 submissions per year to a single business as in the AB 5 version, but:

• must have a “written contract that specifies the rate of pay and obligation to pay by a defined time”;
• may not be “directly replacing an employee who performed the same work at the same volume for the hiring entity”;
• may not be performing the work principally “at the hiring entity’s business location”; and
• may not be “restricted from working for more than one hiring entity.”

Labor Code 2778 also exempts freelance writers, editors, and newspaper cartoonists from the 35 maximum submissions per client requirement of AB 5, and adds to their ranks translators, copy editors, and illustrators. Their contracts are also subject to the bullet points above and must address the intellectual property rights.

The new law also adds several professions performed by an individual: “content contributor, advisor, producer, narrator, or cartographer for a journal, book, periodical, evaluation, other publication or educational, academic, or instructional work in any format or media,” subject to the same requirements as the writing professions in the preceding paragraph.

Also exempt are:

• “A specialized performer hired by a performing arts company or organization to teach a master class for no more than one week”;
• Appraisers;
• Licensed and registered professional foresters;
• Real estate licensees (with special provisions as to workers compensation and unemployment insurance requirements);
• Home inspectors; and
• Licensed repossession agencies “free from the control and direction of the hiring person or entity in connection with the performance of the work, both under the contract for the performance of the work and in fact.”

Under the new law, while they are still required to have a business licenses if required in the jurisdiction, all professionals have a breathing period of six months from September 4, 2020 – the effective date of AB 2257 – to obtain those licenses.

See also:

• California’s Newest Independent Contractor Law Part 2 - Revised Referral Agency Exception (September 24, 2020)
• California’s Newest Independent Contractor Law Part 1 – Revamped Business-to-Business Exceptions (September 17, 2020)
• Gagging the Gigs, Plan B – California Remodels Exceptions to Its Strict Independent Contractor Test (September 11, 2020)

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

Helena Kobrin
October 10, 2020

In response to a recent New York court ruling more favorable to employees, the Department of Labor (DOL) reaffirmed, revised and/or further explained the Families First Coronavirus Response Act (FFCRA) rules and frequently asked questions. Effective September 16, 2020 the regulations clarify:

• Leave Available Only When Work Available: Any type of FFCRA leave may be taken only if work would otherwise be available. Thus, an employee may not take FFCRA leave if the employer has temporarily or permanently ceased certain operations or is forced to furlough the worker for legitimate business reasons. See, 29 Code of Federal Regulations section 826.20.
• Approval Required for Intermittent Leaves: Employer approval will be needed for taking intermittent FFCRA leave. See, 29 Code of Federal Regulations section 826.50.
• Who is a “Health Care Provider” for Whom Leave May be Unavailable? Although the FFCRA permits “health care providers” to deny FFCRA leave to their employees, the New York court rejected the DOL’s broad inclusion of healthcare workers indirectly involved in health care delivery. The DOL now redefines “healthcare provider” to those who either meet the definition of that term under the Family and Medical Leave Act (FMLA) regulations (i.e., a licensed doctor, nurse practitioner, or other health care provider permitted to issue an FMLA certification); or provide direct diagnostic, preventative or treatment services or other integrated services necessary to the provision of patient care which, if not provided, would adversely impact patient care (e.g., nurses, nurse assistants, and medical/laboratory technicians). See, 29 Code of Federal Regulations section 826.30.
• Who is Not a Health Care Provider? Specifically, a “healthcare provider” does not include IT professionals, building maintenance staff, HR personnel, cooks/food services workers, records managers, consultants and billers, even if they work at a hospital or other health care facility. See, revised DOL FAQ No. 56.
• Required Notice and Documentation to Qualify for Leave: Employees must provide their employers with required notice and documentation substantiating the need for FFCRA leave as soon as practicable. See, 29 Code of Federal Regulations section 826.90.

In its September 11 press release, Wage and Hour Administrator Cheryl Stanton stated, “As the economy continues to rebound, more businesses return to full capacity, and schools reopen, the need for clarity regarding the Families First Coronavirus Response Act paid leave provisions may be greater than ever…. Our continuing robust response to this pandemic balance support for workers and employers alike, and remains our priority.” Thus, employers should review existing policies and procedures to confirm compliance with the revised regulations.

See also:

• Over the Horizon - Broader “Worker-Friendlier” COVID Leave Criteria? (August 21, 2020)
• Paid Sick Leave Going Viral – California Cities and Counties Expanding Pandemic-Related Benefits (May 29, 2020)
• It’s a Wash – COVID 19 Paid Leave and Tax Credits (April 9, 2020)
• Federal Coronavirus Workplace Relief - New Paid Sick Leave, Family Leave and Tax Credits Effective April 2, 2020 (March 23, 2020)

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

Cindy Bamforth
October 8, 2020

Sacramento continues to equip the state’s Division of Occupational Safety and Health (Cal/OSHA) with expanded powers in these days of COVID. Assembly Bill (AB) 685 (Labor Code 6325(b)), effective for two years from January 1, 2021, enables the agency to shut down any business operation or place of employment when, in Cal/OSHA’s “opinion,” that venue poses a COVID-related “imminent hazard” to such operations or workforce.

There are some boundaries:

• Cal/OSHA’s power is limited to “the immediate area in which the imminent hazard exists”; the agency may not prohibit operations or access to portions of a workplace “which is not exposing employees to, or is outside such area of imminent hazard”;
• Cal/OSHA may not apply this power if it would “materially interrupt the performance of critical government functions essential to ensuring public health and safety functions or the delivery of electrical power or water” (e.g. Cal/OSHA can’t shut itself down for any such hazard); and
• The agency has no power to prevent entry to or use of such a condemned venue for the sole purpose of eliminating the dangerous conditions.

Cal/OSHA regards any hazardous condition or practice “imminent” “which could reasonably be expected to cause death or serious physical harm immediately or before the imminence of the hazard can be eliminated through regular Cal/OSHA enforcement procedures.” Since the law only requires the agency’s “opinion” on the matter, apparently Cal/OSHA will know – and be trusted to know -- an imminent hazard when it sees one.

Suffice to say this new power should motivate continued effective commercial pandemic prevention and control actions to prevent and limit workplace infection to absolute minimums.

See also:

• Pandemic Police on Patrol-Cal/OSHA Hitting Employers Statewide for COVID-19 Non-Compliance (September 10, 2020)
• COVID’s Constant? …Change - E.E.O.C.’s Expanded Guidelines on Screening, Testing and Pandemic Management (September 18, 2020)
• Update California COVID Plan B- “Blueprint” Workplace Return Improving Conditions Statewide (September 25, 2020)

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

Tim Bowles
October 2, 2020

Effective September 4, 2020, Assembly Bill (AB) 2257 and Labor Code section 2777 broaden the “referral agency” exception to the state’s strict “ABC” definition of independent contractors.

A referral agency is a “business that provides clients with referrals for service providers to provide services under a contract,” other than the specific services excepted under section 2777.

Service providers are sole proprietors or business entities that “agree to the referral agency’s contract and use the referral agency to connect with clients.”

A client contracting services from a referral agency may be an individual or a business contracting for services that its employees do not usually provide and that are not within its usual course of business.

Referral agency services eligible for exemption from the rigid ABC test “include, but are not limited to, graphic design, web design, photography, tutoring, consulting, youth sports coaching, caddying, wedding or event planning, services provided by wedding and event vendors, minor home repair, moving, errands, furniture assembly, animal services, dog walking, dog grooming, picture hanging, pool cleaning, yard cleanup, and interpreting services.” Section 2777 provides definitions for tutor, youth sports coaching, interpreting services, consulting, and animal services.

The highlighted language means that other businesses may also qualify for the referral exemption, in contrast with the AB 5 version that limited the exceptions to an enumerated list of businesses.

However, the new law explicitly excludes from exemption “referrals for businesses that provide janitorial, delivery, courier, transportation, trucking, agricultural labor, retail, logging, in-home care, or construction services other than minor home repair” or OSHA or Department of Industrial Regulations high-hazard occupations.

The exemption is available to sole proprietors or business entities operating a referral agency that:

• Does not control the service provider’s work both factually and under the contract;
• Requires service providers to certify they have any required business or professional license or tax registration (referral agency must keep the documentation for three years);
• Has the service providers deliver the services under their own names, not that of the referral agency;
• Has the service providers set their own rates, with the right to accept or reject any rate and negotiate those through the referral agency or directly with the client; and
• Has service providers set their own hours with the client receiving the work.

Other requirements are:

• In contrast to the AB 5 exception, the service provider must only be customarily engaged or was previously engaged in an independently established business or trade; such provider is also no longer required to have a separate clientele but still must be free to work for other clients and agencies; and
• A service provider must have his/her/its own tools and supplies, and if required for the type of work, hold its own license from the Contractors State Licensing Board.

For any referral agency that qualifies for the exemption, the less-stringent Borello balancing test will govern whether a referred service provider is a contractor or an employee.

See also:

• California’s Newest Independent Contractor Law Part 1 – Revamped Business-to-Business Exceptions (September 17,2020)
• Gagging the Gigs – California Remodels Exceptions to Its Strict Independent Contractor Test (September 11, 2020)
• Back From the Brink – For Now – Uber and Lyft’s Last-Minute Reprieve From Order to Convert Drivers to Employees (August 27, 2020)
• Making Dynamex Retroactive – Federal Appeals Court Rules New Independent Contractor ABC Test Applies Before It Existed (May 31, 2019)
• Independent Contractor or Employee? – California Legislature Dealing with Competing Proposals to Kill or Expand New Dynamex Test (April 19, 2019)
• Independent Contractor Status? It Depends – Radically New Dynamex Test Only Applies to Certain Employee Classification Cases (November 9, 2018)

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

Helena Kobrin
September 24, 2020

The Americans with Disabilities Act (ADA) includes an employee’s right to maintain the privacy of his or her medical information notwithstanding any ailment that might limit that person’s ability to perform essential job functions. However, the pandemic’s new “abnormal” quickly led the federal Equal Employment Opportunity Commission (EEOC) to relax those ADA confidentiality restrictions in the interest of thwarting widespread workplace disease transmission. See, Infection Protection; What an Employer Can Ask in a Pandemic (March 25, 2020).

From the past six months of fielding the public’s confusions over the agency’s initial guidelines, the EEOC has published a greatly expanded technical assistance, “What You Should Know About the ADA, the Rehabilitation Act, and COVID-19” (September 8, 2020) (New COVID Circular).

Roughly twice the length of the preceding version, this updated circular includes key direction, including for example:

• Continuing Workforce Testing: An employer may administer COVID-19 testing to screen workers initially entering the workplace as well as to regularly monitor possible infection among the workforce. New COVID Circular, section A.6. The EEOC’s previous approval of worker testing was limited to initial workplace entry only.
• Test Choice Prerogatives: Management may use tests “considered” accurate, but should regularly check the federal government websites for new information. New COVID Circular, section A.6. The previous guideline placed the burden on the employer to ensure tests were in fact “accurate and reliable.”
• Workplace Entry Criteria: An employer may ask all employees physically entering the workplace if they have been diagnosed with or tested for COVID-19. New COVID Circular, section A.8. The previous guideline was silent on the issue.
• Singling Out Employees for Screening: As long as based on objective evidence, managers may single out an employee to ask questions to determine if he or she has COVID-19 or to require his/her temperature taking or testing. New COVID Circular, section A.9. The prior guideline offered no view on this.
• Barring Uncooperative Employees from the Workplace: An employer may prohibit an employee from entering the workplace who refuses to have his/her temperature taken or to answer questions on COVID-19 infection, symptoms or testing. However, management should take care to first clarify and understand the worker’s grounds for refusal. It may be for example that the employee only needs reassurance on confidentiality of his/her health information or seeks some reasonable accommodation on how he/she is to be screened. New COVID Circular, section A.11. Again, previous guidelines did not address this scenario.
• Identifying COVID-Infected or -Suspected Employees: On report that a worker has COVID-19 or symptoms, managers can and should take proactive measures to prevent and limit the spread to co-workers, but only in a manner that protects the subject worker’s privacy to the extent possible.

Thus, the EEOC recognizes the necessity of interviewing the affected person for a list of people with whom he/she has had close workplace contact but advises against specifically identifying that COVID-affected person to those on the list. Instead, the employer should use a “generic descriptor,” e.g., “someone at this work location” has COVID-19. While it is inevitable that person’s identity will be known by some, the information should be on need-to-know only. New COVID Circular, section B.5. No prior EEOC guidance set forth advice on these matters.

Best practice should include close review of the New COVID Circular to determine any appropriate
expansion in turn of an employer’s internal pandemic protocols.

See also:

• Workplace Pandemic Prevention - Model Employee Handbook and Forms Include Vital COVID-19 Protocols (September 3, 2020)
• Older Folks are People Too - Expanded Federal Pandemic Guidelines Allow Favorable Treatment for Aged 65-Plus Personnel (July 24, 2020)
• Thinking the Unthinkable - Expanding Federal Post-Pandemic Guidelines for Safeguarding Returning Personnel (April 23, 2020)

We continue to assist employer clients on pandemic-related policies, protocols and problem solving. For more information, contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Tim Bowles
September 18, 2020