The newly streamlined Employment Development Department (EDD) Unemployment Insurance “work sharing” procedure enables employers to reduce costs in these tough pandemic times, without letting employees go.

Work share plans are not new in California, if used infrequently. Instead of the tough choice of who is to stay and who is to go, an employer facing a downturn may reduce co-worker hours across the boards or in an affected unit with each individual receiving unemployment benefits toward his/her missing work time. Such plans thus keep all those employees on payroll, preserving any applicable health and retirement benefits.

Spurred by COVID conditions, Assembly Bill (AB) 1731, effective September 30, 2020, aims to expedite this potential solution.

EDD now provides an electronic portal to enable employers to propose work sharing plans to cover “affected units” of their companies, i.e., those “plants, departments, shifts or other identifiable units,” having a minimum of two workers, and not less than 10 percent of the employer’s regular permanent work force involved . . . in each week, or in at least one week of a two-consecutive-week period, to which an approved work sharing plan applies.”

Among other requirements, the employer must also:

• Only reduce hours between ten and 60 percent;
• Notify employees in advance or explain to the EDD why it is not giving notice; and
• Certify that the plan “is in lieu of temporary or permanent layoffs, or both,” as well as how many workers the employer would have had to lay off without the plan.

The EDD must act on a plan application within ten working days of receipt and provide employers a claim packet – via online or by mail -- within five days of approval.

Plans approved through September 1, 2023 will be in effect for one year from approval date unless the employer requests a shorter time period.

The EDD’s online FAQs for employees and employers supply other application and administrative requirements.

See also,

• Unemployment Goes Viral, Furlough Versus Layoff: A Distinction Without a Difference? (March 2020)
• Workplace Safety Nets, The Coronavirus Outbreak and California Unemployment Benefits (March 2020)

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

Helena Kobrin
November 24, 2020

“At-will” employment status is commonly understood as an employer’s prerogative to abruptly terminate a worker for any reason at all. Not so fast.

Originally adopted during the 1800s Industrial Revolution to provide greater workforce mobility, “at-will” did mean that either employer or employee could terminate or quit the relationship at any time, with or without advance notice and with or without a reason.

However, Congress, state legislatures and the courts have since restricted the concept to include only terminations for reasons not otherwise forbidden. The list of prohibited reasons has steadily grown over the past several generations.

In 1935, for instance, the National Labor Relations Act banned termination based on union-related activities. Also spurred by the Depression, Labor was also able to win contract provisions requiring employers to establish a lawful “just cause” for firing union members.

The Civil Rights Act of 1964 further hindered employer rights to terminate people for classifications irrelevant to job qualifications or performance, initially race, color, sex, national origin or religion.

Depending on an employer’s state or even municipality and the size of its payroll, these so-called “protected classifications” may now exceed 15 or more, to name a few: disability (physical or mental), age (40 or older), sexual orientation, marital status, medical condition, military status, and traits associated with a particular race, such as hair texture and style.

Thus, even if there is a legitimate performance-based reason to terminate a failing employee, management must proceed deliberately if any of these forbidden factors might also be in play.

Best practices include:

• written employment applications and employment agreements that clearly lay out the at-will status of employees;
• workplace policies or a handbook reiterating at-will while clearly prohibiting management decisions based on any protected classification;
• training and education for executives, managers, supervisors, and human resources personnel on the limits of at-will employment as imposed by protected classifications; and
• consultation with an experienced management-side employment attorney on planned terminations where a protected classification issue might arise.

See also:

• Don’t Kill At-Will Employment: Maximize Ability to Manage By Written At Will Employment Agreements
• “At Will” Employment: A Three-Minute History

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

Helena Kobrin
Tim Bowles
November 20, 2020

Under existing law, employers with 50 or more on payroll are required to provide unpaid family and medical leave under the California Family Rights Act (CFRA) and those with 20 or more on payroll had to provide unpaid baby-bonding time off under the New Parent Leave Act (NPLA).

Effective January 1, 2021, Senate Bill 1383 (SB 1383) repeals the NPLA and greatly expands the CFRA’s leave entitlements.

Under the expanded CFRA, employers with as few as five employees must provide eligible workers with up to 12 weeks of unpaid job-protected family and medical leave each year.

An eligible employee must be employed for more than one year with the employer and have worked at least 1,250 hours during the 12 months prior to the leave. Previously, the law excluded highly-paid salaried employees; the expanded law does not.

Eligible employees may take up to 12 weeks of consecutive or intermittent unpaid leave within a 12-week period.

Eligible employees can take leave to bond with a new child or to care for themselves or a child, parent, spouse or domestic partner. The expanded CFRA also permits leave under these new qualifying reasons:

• To care for the serious health condition of a child of any age, including a child of a domestic partner;
• To care for the serious health condition of a grandparent, grandchild, or sibling;
• To bond with a new child within one year of birth, adoption, or foster care placement (both parents working for the same employer no longer have to split the 12 weeks of leave); or
• For reasons related to military activities/deployment of a specified Armed Forces family member

Employers may require limited documentation to substantiate the need for the leave. Upon granting the leave request, employers must guarantee reinstatement to the same or a comparable position.

Employers must continue paying group health insurance premiums as if the employee were actively working.

Although the leave is unpaid, the employee must be allowed to use available paid sick leave and accrued vacation pay for the employee’s own serious health condition. For CFRA leaves on other grounds, the employee must be allowed to use accrued vacation.

Employers with 50 or more on payroll must also continue to comply with the federal Family and Medical Leave Act (FMLA). Such employers will now potentially face a dual leave track. For example, the expanded CFRA permits for time off to care for a sibling, FMLA does not. Thus, an employee could potentially use up to 12 weeks of expanded CFRA to care for a sibling and then another 12 weeks of FMLA to care for a parent in a single year.

Covered employers should promptly update their employee handbooks and absence request forms. They should also educate and train their supervisors on the new law.

See also:

• What’s New in 2021: Crime Leave Spreading – California’s Broader Protections for Victim-Related Employee Time Off (October 15, 2020)
• What’s New in 2021 – Industry Suffocation Orders – California’s Safety Agency Now With Pandemic “Imminent Hazard” Shutdown Powers (October 2, 2020)

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

Cindy Bamforth
November 12, 2020

58 percent of California voters have approved Proposition 22, allowing Uber, Lyft, PostMates, DoorDash, Instacart, and other gig economy companies to continue classifying their workers as independent contractors. Effective immediately, such drivers are no longer subject to the rigid ABC test first issued in California Supreme Court’s Dynamex decision (2018) and furthered in the legislature’s Assembly Bill (AB) 5 (2019) and AB 2257 (2020)

Proposition 22 creates a new, hybrid version of independent contractor status for “application (app)-based” drivers working for “network companies” which pick up and deliver goods or people. It guarantees 120 percent of minimum wage for “engaged” time, i.e., from pick-up to delivery, as well as per-mile compensation for vehicle expenses, and other benefits. When a driver makes a pick up in a higher minimum wage county or city, the higher minimum applies to that trip.

A company utilizing this model may not:

• unilaterally require specific times, days, or minimum hours that the drivers must be logged into the app;
• require drivers to accept specific rideshare or delivery requests in order to maintain access to the app;
• prevent the drivers from working for other rideshare or delivery services other than when they are engaged in service for that company; or

• restrict drivers from working in any other business or occupation.

In order for the relationship to qualify, network companies and drivers must have written contracts prior to the driver accessing the company’s app and a company may only terminate a driver on grounds listed in the contract.

The new law also provides an earnings floor, and if a driver makes less than that amount for a 14-day earnings period, the company must make up the difference. In addition, companies may not take any portion of tips a driver receives from customers, must pay the tips to the driver, and may not decrease a driver’s pay because of tips.

Other rights, benefits, and policies include:

• a healthcare subsidy based on amount of driving time;
• occupational accident insurance coverage and disability coverage;
• accidental death insurance if a death results while the driver is online with the company’s app;
• an anti-discrimination policy pursuant to the Unruh Civil Rights Act (California Civil Code 51);
• a sexual harassment policy that drivers must study before driving for the company; and
• a limitation of 12 hours of driving in any 24-hour period without being logged off the app for at least six hours.

Companies must require criminal background checks for all drivers prior to accessing the company’s app, with certain convictions disqualifying the driver (e.g., felony sex or other violent crimes). They must also provide safety training to drivers.

A company are also must have a zero-tolerance policy for workers under the influence of drugs or alcohol while driving.

As reflected in the recent “ABC” legislation above and the contrasting large majority who voted for Prop. 22, independent contractor status for app-based drivers has been and remains a hot topic.

While the balance now presented by Proposition 22 will not satisfy everyone, it permits the business survival of network companies while enhancing driver work conditions and maintaining the convenience and relatively low cost of such transportation and delivery services.

See also:

• Back From The Brink – For Now - Uber and Lyft’s Last-Minute Reprieve From Order to Convert Drivers to Employees (August 27, 2020)
• Traffic Slamming - New Fronts on California’s War Against Uber and Lyft (August 13, 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 further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
Helena Kobrin

November 6, 2020

For the second year running, our clients, fellow attorneys and other supporters have confirmed we are Pasadena Weekly’s best law firm. Thanks to all Southern California communities for allowing us to serve you since 1998.

5 Nov,2020

November 5, 2020

In response to more than a year of meetings, fact-findings and discussions between legislators and the music industry, AB 2257 and new Labor Code 2780, effective September 4, 2020, provide a new music and entertainment industry exemption from the strict “ABC” test for independent contractor classification.

Now eligible to apply the more-forgiving Borello “balance of factors” test:

• Musicians, vocalists, and other recording artists (must receive minimum and overtime wages when not receiving royalties or a share of the earnings)
• Composers
• Songwriters, lyricists, and proofers
• Musical engineers
• Sound mixers
• Record producers and directors
• Other professionals involved in a sound recording/musical composition’s creation, marketing, promotion or distribution

Individual performance artists (including comedians, improvisers, magicians, illusionists, mimes, storytellers and puppeteers) can also be ABC test-exempt when performing original, creative work if they are free from the hiring entity’s control and direction both in contract and in fact, retain their intellectual property rights, and can set their terms of work and negotiate their rates.

Single-engagement live performance musicians may avoid the stricter ABC test unless they are headlining at a concert venue with more than 1,500 attendees or performing at a music festival with over 18,000 tickets sold daily.

The ABC test will continue to apply to performers who:

• Perform as part of a tour or series of live performances at various locations;
• Regularly perform in an amusement or theme park; or
• Perform in a symphony orchestra or musical theater production

The fine-point boundaries of this law thus require any “hirer” and “hiree” to ensure they are adequately defining their relationship to qualify for this looser “Borello” test for independence.

See also:

• California’s Newest Independent Contractor Law Part 4 – Amateur Umpires and Referees Among Expanded “Specified Occupations” Exceptions to Strict Test (October 22, 2020)
• 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 29, 2020

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