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As a San Francisco judge had directed that Uber and Lyft convert their drivers to employees by August 21, 2020,the rideshare giants were ready to shut down their California operationsunless the Court ...
As a San Francisco judge had directed that Uber and Lyft convert their drivers to employees by August 21, 2020, the rideshare giants were ready to shut down their California operations unless the Court of Appeal put that order on hold. See, Traffic Slamming – New Fronts on California’s War Against Uber and Lyft (August 13, 2020).
However, on August 20, the California appeals court did just that, conditionally suspending the injunction for the length of Uber/Lyft’s appeal as long as the companies agreed to accelerate that appeal (both have) and, by September 4, confirm they will switch their California drivers to employees ● if they lose that appeal; and ● if the voters reject Proposition 22 on the November 3, 2020 ballot.
Proposition 22 proposes extensive amendments to California’s “AB 5” laws to permit a wider scope of independence – along with protections and benefits – for gig economy workers.
Next in this drama will be Uber’s and Lyft’s September 4 sworn commitments to comply with the preliminary injunction if left with no further relief from the trial court’s required conversion of drivers to employees. As they were apparently willing to do last week, the companies might instead announce their determination to shut down all California operations as that last resort instead of converting.
To minimize state or worker challenge to their hiring practices, smart California businesses contemplating or continuing independent contractor classification should consult a management-side employment attorney to advise on how the law – and the current uncertainties surrounding Uber and Lyft drivers – affect their plans.
See also:
For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
Helena Kobrin
August 27, 2020
Uber and Lyft’s Last-Minute Reprieve From Order to Convert Drivers to Employees
As California supplies no specific definition for required personnel records, it falls to company management to judge what constitutes adequate documentation that reliably reflects each employee’s wor...
As California supplies no specific definition for required personnel records, it falls to company management to judge what constitutes adequate documentation that reliably reflects each employee’s work history with the company.
Labor Code section 1198.5 addresses employees’ rights to access their “personnel records” without defining the term. The Labor Commissioner refers to “personnel files” and “personnel records” interchangeably but only names categories of papers generally considered to fall within these terms: “those that are used or have been used to determine an employee’s qualifications for promotion, additional compensation, or disciplinary action, including termination.” The Commissioner also offers “some examples,” including employment application; performance evaluations; promotion, pay rate, discipline, and termination notices; and attendance records.
Employers should not limit their recordkeeping practices to this handful of suggestions from the state. A wider range of items to be kept in each employee’s main personnel file might include:
Worker privacy requires several other worker-related items to each be maintained separately, including:
Retain all personnel records, confidential and otherwise, for at least four years after the employment relationship ceases. Documents requiring even longer retention periods include ● pension and welfare plan information (five years); ● first-aid records of certain job injuries causing loss of work time (five years), and safety and toxic or chemical exposure records including safety data sheets (30 years).
Employers should periodically review and update company policy and procedures that establish: (i) who will maintain the company’s personnel records; (ii) how and where to store all such records; and (iii) how to protect the records from unauthorized access, removal or destruction.
Note: By contrast, federal and state laws are explicit on required payroll-related records. See, U.S. Department of Labor Fact Sheet #21: Recordkeeping Requirements under the Fair Labor Standards Act (FLSA); California Division of Labor Standards Enforcement (DLSE) Enforcement Policies and Interpretations Manual, August, 2019, section 4 “Time Record Requirements”; and Employment Development Department (EDD) 2020 California Employer’s Guide, p. 78, “Recordkeeping.”
For more information, please contact one of our attorneys Tim Bowles, Cindy Bamforth or Helena Kobrin.
Tim Bowles
Cindy Bamforth
August 14, 2020
Sound Management Practices For Personnel Documentation
After a month or more of eased restrictions, California’s“Statewide Public Health Officer Order”(July 13, 2020) required all counties to close indoor operations for • dine-in restaurants, • wineries and tasting rooms, • movie theaters, • family entertainment centers (for example: bowling alleys, miniature golf, batting cages and arcades), • zoos and museums, and • card rooms.
The saga continues.
After a month or more of eased restrictions, California’s “Statewide Public Health Officer Order” (July 13, 2020) required all counties to close indoor operations for • dine-in restaurants, • wineries and tasting rooms, • movie theaters, • family entertainment centers (for example: bowling alleys, miniature golf, batting cages and arcades), • zoos and museums, and • card rooms.
With exception for any outdoor dining services, bars, brewpubs, breweries, and pubs were also to close all operations.
The new order also specified that counties remaining on the California County Monitoring List for three consecutive days are required to shut down: • gyms and fitness centers, • places of worship and cultural ceremonies including weddings and funerals, • offices for non-critical infrastructure sectors, • personal care services such as nail salons and body waxing, • hair salons and barbershops, • shopping malls, • shops that offer tattoos, • piercings, and • electrolysis.
We count 20 counties which have rescinded their local orders to follow statewide guidances: • Colusa • Calaveras • El Dorado • Fresno • Inyo • Kern • Kings • Lake • Mono • Monterrey • Nevada • Placer • Riverside • San Benito • San Bernardino • San Luis Obispo • Santa Cruz • Stanislaus • Tehama and • Yolo.
Other counties and many cities continue with “safer at home” or “shelter in place” ordinances similar to or stricter than Sacramento’s statewide directives. To our knowledge, as of August 7, 2020:
Amended Health Officer Order – Isolation Non-Immunocompromised (7.23.20)
Amended Health Officer Order – Isolation Immunocompromised and/or Critically Ill (7.23.20)
San Mateo County’s press release
Thanks again to our legal assistant Daniska Coronado for these continuing updates. Please use the above links and other online resources for further developments. Requirements of varying strictness continue to change frequently, municipality-by-municipality.
See also:
For more information, contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
Tim Bowles
Daniska Coronado
August 7, 2020
Uber and Lyft havesuccessfully battled suitsseeking to prevent the companies fromclassifying their drivers as independent contractors, until now.
Uber and Lyft have successfully battled suits seeking to prevent the companies from classifying their drivers as independent contractors, until now.
On August 10 – in a misclassification action pending in San Francisco – the court issued a preliminary injunction requiring Uber and Lyft to convert their independent contractors to employees until final decision at trial. However, the judge put order on hold for 10 days to permit the companies to appeal the order to the Court of Appeal.
Another attack line opened this month, a Labor Commissioner complaint filed in Oakland claiming Uber and Lyft are engaging in “wage theft” by characterizing an estimated 100,000 drivers each as independent. The suit seeks recovery for minimum wage, overtime, rest breaks, paid sick leave, expenses, and mileage, as well as penalties, interest, and attorney fees.
Meanwhile, these rideshare giants have qualified Proposition 22 for the November 3 ballot, seeking voter override of the state’s efforts to end their independent contractor business model.
On the PR front, Uber’s CEO August 10 op-ed in The New York Times (“Gig Workers Deserve Better”) challenged the current “either/or” divide with a middle “third way” permitting the flexibility a majority of gig drivers want along with employment benefits not currently received.
Regardless of how all this settles out, seeking expert advice from a management-side employment attorney is crucial for a business contemplating hiring workers – or continuing to classify them – as independent contractors.
See also:
For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
Helena Kobrin
August 13, 2020
New Fronts on California’s War Against Uber and Lyft
After four months of various degrees of “stay home,” “safer at home,” and “shelter in place,” California offers itsCovid-19 Employer Playbook for a Safe Reopening(July 24, 2020), an attempted comprehe...
After four months of various degrees of “stay home,” “safer at home,” and “shelter in place,” California offers its Covid-19 Employer Playbook for a Safe Reopening (July 24, 2020), an attempted comprehensive “guidance” for limiting workplace infection as the pandemic wears on.
“Guidance” suggests recommendations, not the direct force of law. However, the piece cross-references and supplies links to many COVID-inspired mandatory statewide and municipal health and safety standards. Management should thus read and apply the Playbook conscientiously.
Such close study will confirm the need for experienced legal counsel to assist an employer with the critical balancing between individual employee privacy rights and employer responsibility to protect the wider workforce and public from infection in these remarkable times.
Citing the state’s Industry-Specific Guidance and Checklists – covering particular pandemic considerations for 29 business sectors (now updated through July 30, 2020) — the Playbook specifies the six needed actions for all employers. All facilities must:
“1. Perform a detailed risk assessment and create a work site-specific COVID-19 prevention plan
“2. Train workers on how to limit the spread of COVID-19. This includes how to screen themselves for symptoms and when to stay home
“3. Set up individual control measures and screenings
“4. Put disinfectant protocols in place
“5. Establish physical distancing guidelines
“6. Establish universal face covering requirements (with allowed exceptions) in accordance with CDPH [Cal. Dept. of Public Health] guidelines …”
Anticipating trouble, Playbook Appendix A offers employer approaches to enforcing workplace mask requirements including: ● training workers on how to minimize workplace violence and to get support “when de-escalation efforts are unsuccessful”; ● with respectful posture and expression, speak to non-complying employees with calm voice at normal volume; and ● “settle on a method for calling in support from security or law enforcement if needed.” Again, remarkable times.
Offering nothing to clarify the ill-defined boundary between the privacy rights of a COVID-19 symptomatic employee and the need to prevent a company-wide outbreak, the Playbook instead simultaneously advises management:
● should cooperate with the local health department (LHD) by reporting a known or suspected employee infection and by sharing “a roster of all employees with the LHD” and should also “notify all workers who were potentially exposed”; but
● “must maintain confidentiality of employees with suspected or confirmed COVID-19 infection when communicating with other employees.”
Also touching the limits of employee privacy against public health interests, the volume cites required compliance with Cal/OSHA’s (Cal. Occupational Health and Safety Administration) Recording and Reporting Requirements for COVID-19 Cases.
On the appropriate Cal/OSHA form, employers must keep a record of any “work-related COVID-19 fatality or illness,” including any employee displaying pandemic-related symptoms who has spent “days away from work.” Thus, a positive COVID-19 test is not a prerequisite for logging an employee absent for “days” (how many is undefined) with a fever. Cal/OSHA recommends “erring on the side of recordability.”
Cal/OSHA also requires employers to report “serious illness, serious injury or death of an employee that occurred at work or in connection with work within eight hours of when [management] knew or should have known of the illness.” The agency states that “serious illness includes, among other things, any illness occurring in a place of employment or in connection with any employment that requires inpatient hospitalization for other than medical observation or diagnostic testing.”
The question thus arises: how does an employer determine whether an unfortunate worker requiring COVID-19 hospitalization contracted the illness at work or in any other manner connected with that employment. Best practice, again, would be to “err” on the side of reporting.
While the Playbook undertakes to cover the waterfront of COVID-19 related workplace issues, it also underscores an employer’s need to issue thorough pandemic-related policies and protocols and to address any employee infection promptly and with care and proper documentation. The help of skilled legal counsel is thus a good idea here.
See also:
For more information, contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
Tim Bowles
July 31, 2020
California’s Employer Playbook For a Safe Reopening
California employers must follow COVID-19 health and safety guidances including those from the federalCenters for Disease Control (CDC), theCalifornia Department of Public Health, and theCalifornia Di...
California employers must follow COVID-19 health and safety guidances including those from the federal Centers for Disease Control (CDC), the California Department of Public Health, and the California Division of Occupational Safety and Health (Cal/OSHA).
Employers with five or more on payroll must also avoid violating workplace discrimination protections, including this state’s Fair Employment and Housing Act (FEHA). For instance, management cannot send workers home during a pandemic based on their Asian heritage or any other actual or perceived national origin.
To further help achieve this balance, the Department of Fair Employment and Housing (DFEH) has updated its “DFEH Employment Information on COVID-19” FAQs (July 24, 2020), suggesting among other things policy and protocols for health condition inquiries and reasonable accommodation for FEHA-protected “disability” conditions.
However, the agency’s suggestions do not altogether resolve conflicts between pandemic health directives designed to thwart infection’s spread and the privacy rights of individual workers.
Guidelines include for instance:
• Employers may ask employees if they are experiencing COVID-19 symptoms as long as management keeps the information confidential;
In keeping with privacy law, management also “should not identify” by name any employee in quarantine, who has tested positive for COVID-19, or has come into close contact with someone who has the virus.
However, employers also need to follow “local, state, and federal public health recommendations.”
This leaves management with the legitimate question of how they can protect co-workers from infection if a stricken employee should not be identified by name while local health directives may require such disclosure;
• Employers may require employees to wear personal protective equipment during the pandemic. Where an employee with a disability needs a related reasonable accommodation, for example to use non-latex gloves, the employer should provide these absent undue hardships;
• Employers must also strive to reasonably accommodate an employee who cannot come to work because of an underlying disability increasing his/her risk for severe COVID-19 related illness;
• The guidance points out that because age is not a disability, management is not required to reasonably accommodate employees based on their age alone. However, employers also must not discriminate against older employees. “For example, an employer may not return only employees under age 65, even if the employer is doing so to protect its older employees from COVID-19 risks.”
Thus employers should consult with experienced legal counsel before implementing policies and procedures on how to keep workplaces safe and healthy while also protecting their workers’ civil rights.
See also:
For more information about this guidance or other employment issues related to COVID-19, contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
Cindy Bamforth
August 5, 2020
California’s Updated COVID-19 FAQs Call for Careful Decision Making
To a degree, the First Amendment shields religious institutions from government involvement in employment disputes. The U.S. Supreme has recently broadened that protection to potentially place hundred...
To a degree, the First Amendment shields religious institutions from government involvement in employment disputes. The U.S. Supreme has recently broadened that protection to potentially place hundreds of thousands of parochial school teachers and other church-affiliated workers outside the reach of workplace discrimination laws. Our Lady of Guadalupe School v. Morrissey-Berru (July 8, 2020)
Two elementary teachers employed at Southern California Catholic schools claimed discriminatory termination, for age and disability respectively. While denying those allegations, the schools claimed they were in any event beyond the reach of the federal Age Discrimination in Employment Act (ADEA) and the Americans with Disabilities Act (ADA) because each teacher fell within the “ministerial exception” to these laws.
Seven justices of the Court agreed with the schools. Although neither employee held the title of minister or any equivalent church leadership designation, the majority found them unprotected by discrimination laws as each functioned as “teacher of religion” by the inclusion of some degree of Catholic indoctrination and practice in their otherwise secular curricula. The justices concluded that they must respect the schools’ self-declared exemption from the ADEA and ADA because the First Amendment protects the right of religious institutions “to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.”
Justice Sotomayor’s dissent pointed up the decision’s potentially staggering applications. Previously, the ministerial exemption applied only to individuals demonstrably in leadership positions of respective denominations. Justice Sotomayor observed that so long as the religious employer determines that a worker’s “duties” are “vital” to “carrying out the mission of the church,” that employer now appears able “to make employment decisions because of a person’s skin color, age, disability, sex, or any other protected trait for reasons having nothing to do with religion.”
Pulling no punches, the justice remarked that “sources tally over a hundred thousand secular teachers whose rights are at risk … [to say] nothing of the rights of countless coaches, camp counselors, nurses, social-service workers, in-house lawyers, media-relations personnel, and many others who work for religious institutions. All these employees could be subject to discrimination for reasons completely irrelevant to their employers’ religious tenets.”
Whether this Our Lady decision leads to such a broad loss of discrimination protections for workers in the faith sector remains to be seen. All justices acknowledge future cases must of necessity proceed on a case-by-case basis. However, the ruling does provide church institutions a roadmap on how best, in good faith, to position particular employee job duties to the exclusion of those protections.
See also:
For more information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
Tim Bowles
July 16, 2020
July 7, 2020
July 7, 2020
All private employers regardless of size.
July 8, 2020
Private employers with 500 or more employees within the United States.
April 7, 2020
Private employers with 500 or more employees and small businesses of 50 or fewer.
April 17, 2020
Private employers with 500 or more employees worldwide.
July 15, 2020
All employers with 500 or more employees nationwide.
May 12, 2020
Private employers regardless of size (except for those with fewer than 50 employees between February 3, 2020 and March 4, 2020).
April 28, 2020
Until two calendar weeks after the expiration of the COVID19 local emergency period
May 29, 2020
Private employers with 500 or more employees within the city, or 2,000 or more nationwide.
Until further notice
May 19, 2020
Private employers with 500 or more employees nationwide.
December 31, 2020
April 1, 2020
All employers regardless of size
The federal Families First Coronavirus Response Act (FFCRA) requires most businesses with fewer than 500 employees to provide emergency paid sick leave benefits for workers affected by COVID-19. For example, covered employers must provide 80 hours of paid sick leave for full-time employees and two weeks of average hours worked for part-time employees who cannot work or telework for any one of six COVID-19 related reasons. See, Federal Coronavirus Workplace Relief (March 23, 2020).
With the pandemic persisting in California, local governments continue to issue emergency ordinances for workers to supplement FFCRA benefits. Since our initial posting — Paid Sick Leave Going Viral (May 29, 2020) — we count two more California cities and one county joining the list.
To our knowledge, and as of July 22, 2020:
*Ordinances for the cities of Emeryville, Los Angeles and San Diego require employers to allow covered employees to use any accrued sick leave benefits for COVID-19 related reasons.
California has issued a statewide April 16, 2020 Supplemental Paid Sick Leave Order (and mandatory poster) for food sector employers with 500 or more employees.
Please check the above links and other online resources for any updates.
See also:
For more information about these laws or other employment issues related to COVID-19, contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
Cindy Bamforth
July 23, 2020
Cities and Counties Requiring Paid Sick Leave Above and Beyond Federal LimitsCity or CountyCovered Employers Effective Date Expiration Date Other Resources
$13.50 (26+ employees)
$13.50 (26+ employees)
$12.50 (25 or fewer employees) and
$13.00 ($15.00 on July 1, 2020) (26+ employees)
$12.00 ($14 00 on July 1, 2020) (25 or fewer employees) and
$15.00 (currently $14.25) (26 employees or more)
$15.00 (currently $14.00)
$15.00 (26+ employees)
$14.00 (25 or fewer employees) and
$15.00/currently $14.25 (26+ employees)
$14.25/currently $13.25 (25 or fewer employees) and
$13.00 ($15.00 on July 1, 2020) (100+ employees
$13.00 ($14.00 on July 1, 2020) (26+ employees)
$12.00 ($13.00 on July 1, 2020) (25 or fewer employees)
$15.00 (currently)
$15.00 (currently $14.25) (26+ employees)
$14.25 (currently $13.25) (25 or fewer employees) and
$15.00 (currently $13.50) (26+ employees)
$13.50 (currently $11.00) (25 or fewer employees) and
$16.42 estimated (currently $16.30)
$15.59 (currently)
(indexed to inflation on July 1, 2020)
$15.00 (currently $13.50)
(effective from July 1, 2020)
On January 1, 2020, California minimum wage will increase to $12.00 for small employers with 25 or fewer employees and to $13.00 per hour for larger employers with 26 or more employees. These rates continue to increase annually until they reach $15.00 per hour in 2022 for larger employers and in 2023 for those with 25 employees or less. See California’s Gradual Increases in Minimum Wage, to Reach $15.00 Per Hour by January 1, 2022 (April, 2016).
Some California cities plus two counties have their own minimum wage ordinances. In-state employers need to examine the rules for every jurisdiction in which they operate, not just the one or more where they might have offices. The UC Berkeley Center for Labor Research and Education publishes regular updates.
A covered employer must also conspicuously post an updated wage notice/bulletin for each applicable jurisdiction. Click the above city/county link(s) to download the most current notice.
See also:
For more information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
Helena Kobrin
December 12, 2019
City or CountyMinimum Wage Rate AlamedaBelmontBerkeleyCupertinoDaly City El CerritoEmeryvilleFremontLos AltosLos Angeles CityLos Angeles County (Unincorporated Areas)MalibuMenlo ParkMilpitasMountain ViewNovatoOakland Palo AltoPasadenaPetalumaRedwood CityRichmondSan DiegoSan Francisco City and CountySan Jose San Leandro San MateoSanta ClaraSanta MonicaSanta RosaCity of SonomaSouth San FranciscoSunnyvale