Click here to subscribe to our Bowles Law e-letter
Click here to subscribe to our Bowles Law e-letter
California lawprohibits discrimination against applicants and employees for their membership in any protected class, including religious creed, disability and age (40+).The California Fair Employment ...
California law prohibits discrimination against applicants and employees for their membership in any protected class, including religious creed, disability and age (40+). The California Fair Employment and Housing Council (FEHC) has issued new regulations effective July 1, 2020, to better protect such individuals.
Advertisements. The new regulations prohibit practices that adversely impact applicants or employees age 40 or older, unless the practice is job-related and consistent with business necessity and no alternative practice could accomplish that business purpose with a lesser discriminatory impact.
With limited exceptions, employers are thus prohibited from using recruiting and advertising language that could reasonably be construed to deter or limit employment of anyone age 40 or older. Examples include: “digital native,” “young,” “college student,” “recent college graduate,” “boy,” or “girl” or any other terms implying a preference for younger employees.
Pre-employment inquiries. Inquiries regarding an applicant’s available work schedule “shall not be used to ascertain the applicant’s religious creed, disability, or medical condition” and must “clearly communicate that an employee need not disclose any scheduling restrictions based on legal protected grounds.”
Online application technology must not eliminate applicants based on their schedule unless “job-related and consistent with business necessity.” Online applications must include “a mechanism for the applicant to request an accommodation.”
Best Practices:
California employers should promptly update their websites, marketing materials, job applications, advertisements, and hiring forms and policies to meet the new requirements.
For example, when inquiring about work schedules, job advertisements, candidate application forms (online or physical copies), and job interviews must now include language such as: “Other than time off for reasons related to your religion, a disability, or a medical condition, are there any days or times when you are unavailable to work?”
Full compliance with these revised regulations should help prevent or promptly correct discriminatory practices.
See also:
For more information please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
Cindy Bamforth
June 12, 2020
New Employer Restrictions on Hiring Notices and Interviews Starting July 1, 2020
With temperatures rising to summer levels in parts of the state, employer obligations to protect outdoor workers from heat-related illnesses, beginning at 80 degrees Fahrenheit, come into force. Areas...
With temperatures rising to summer levels in parts of the state, employer obligations to protect outdoor workers from heat-related illnesses, beginning at 80 degrees Fahrenheit, come into force. Areas not yet reaching that threshold should prepare for the heat to come.
Particularly with continuing state and local COVID-19 workplace face mask requirements, employers must be particularly vigilant to protect their employees from heat illness.
Principal Deputy Assistant Secretary Loren Sweatt for the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) recently blogged tips to prevent heat illness, including:
Ms. Sweatt’s suggested measures are similar to California’s Occupational Safety & Health Standards Board (OSHSB) regulations which include special measures for high-heat (over 95 degrees) such as observing employees for signs of heat illness and ensuring 10-minute cool-down breaks every two hours.
California’s Division on Occupational Safety and Health (Cal/OSHA) provides additional tools and information, including heat illness triggers, handlings, and creating a required written prevention plan.
A heat illness plan should be part of an employer’s required Illness and Injury Prevention Plan (IIPP), made available at the applicable worksite(s). A business must convey/translate its plan into the language understood by the majority of the company’s workers.
An IIPP for outdoor workers should also address Valley Fever, caused by a fungus in the top two to twelve inches of soil in parts of the state, especially Fresno, Kern, Kings, Madera, Merced, San Luis Obispo, and Tulare counties. Outdoor workers are susceptible to Valley Fever when triggers such as high wind, digging, and plowing release the fungi into the air. Several Cal/OSHA regulations address Valley Fever safety practices.
See also:
For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
Helena Kobrin
July 1, 2020
California Requirements to Avoid Employee Heat Illness in Time of Face Mask
While each state has the power to set wage and other workplace standards for labor performed within its borders, that authority can blur when truckers and passenger carrier personnel divide their work...
While each state has the power to set wage and other workplace standards for labor performed within its borders, that authority can blur when truckers and passenger carrier personnel divide their work time between the states. On several suits by pilots and flight attendants, the California Supreme Court has ruled certain interstate transportation workers are entitled to state’s protections on paychecks and paydays even for labor outside the state: Ward v. United Airlines and Oman v. Delta Airlines (June 29, 2020).
The employees, all of whom only worked part time inside the state, sought class action recovery of up to $4,000/employee for airline failure to issue California-compliant paystubs (Labor Code 226) on their wages. They argued in part that if they live and pay taxes in California, United and Delta should comply with section 226 no matter where labors were performed. Contending a state’s laws should not reach beyond its geographic boundaries, United and Delta countered they should not be responsible for such compliance when most work was performed outside California.
Observing that California’s current paycheck protection law was introduced in 1943 “at the behest of railroad employees,” many of whom worked interstate, the court found 226 paystub requirements apply when this state “is the [one] that has the most significant relationship to the work,” specifically:
Thus for interstate haulers and carriers, the answer to the question of whether this paystub law applies to its employees is that “it depends.”
The ruling means, for example, that an Arizona hauler must comply with California’s detailed paycheck requirements (as well as the state’s accompanying twice/month minimum paydays law) for a Phoenix-based driver who spends more than half of his or her road time in California in any given pay period. No compliance is required for pay periods in which that driver spends only half or less of his/her road time in California.
The decision also requires an air carrier to comply with these paystub rules for a flight attendant based for example out of LAX but who only works a few hours in-state over any pay period. However, that carrier would not have to comply with the California rules for a New York-based flight attendant who spends comparable time flying in and out of Los Angeles.
The court was careful to explain that the application of other California labor laws to interstate workers must be analyzed on the particular language and meaning of those specific sections. Thus, as it was not critical to the case, the Oman decision found that the geographic reach of this state’s minimum wage laws to hours worked by such multi-state personnel would have to wait for a future case.
See also:
For more information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
Tim Bowles
July 2, 2020
When Interstate Transport Workers are Entitled to California Paycheck Protections
The Civil Rights Act of 1964 is America’s foremost protection against employment discrimination (also known as “Title VII”). Yet, for more than five decades, courts have applied this law to preserve s...
The Civil Rights Act of 1964 is America’s foremost protection against employment discrimination (also known as “Title VII”). Yet, for more than five decades, courts have applied this law to preserve such “equal rights” only for some, and decidedly not for homosexual or transgender persons.
No longer. In a decision which its conservative author acknowledged as “unexpected,” the U.S. Supreme Court has ruled that an employer who fires an individual for being gay or transgender violates Title VII’s prohibition against sex discrimination. Bostock v. Clayton County, Georgia (June 15, 2020).
Title VII makes it “unlawful … for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual … because of such individual’s race, color, religion, sex, or national origin.”
Justice Gorsuch, joined by five other members of the court, found that discrimination against a person for his or her sexual orientation or sexual identity was by definition discrimination because of that person’s sex.
Justice Gorsuch reasoned: “An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex. Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague. Put differently, the employer intentionally singles out an employee to fire based in part on the employee’s sex, and the affected employee’s sex is a but-for cause of his discharge.”
Until this decision, it was possible for private employers in some 25 states to terminate a gay or transgender person for their sexual orientation and/or identity alone. Nationwide, it had also been possible for an employer to argue that even if sexual orientation or identity had been a factor in a worker’s termination, there should be no liability as he or she would have been fired for other reasons in any event (so-called “mixed motive” cases).
Again, no more. An employer violates Title VII when it intentionally fires an individual employee based even in part on (i.e., “because of”) sex (and thus, even in part, on his/her sexual orientation or identity). “It makes no difference if other factors besides the employee’s sex contributed to the decision or that the employer treated women as a group the same when compared to men as a group.”
This profound expansion of Title VII’s principles must also apply to every other individual characteristic that law protects against discrimination: race, color, religion and national origin.
The decision thus calls for employers to take close stock of their policies, practices and training programs to ensure that workplace-protected characteristics are never a factor in any employment decision. Personnel management, whether in hiring, advancement, compensation, discipline, termination or any other major aspect of employment, must be grounded in worker ability, qualification and productivity.
See also:
Please contact Tim Bowles, Cindy Bamforth or Helena Kobrin for more information.
June, 2020
even in part
June 14, 2020
June 14, 2020
May 31, 2020
May 4, 2020
May 7, 2020
July 1, 2020
May 22, 2020
June 6, 2020
June 2, 2020
June 4, 2020
May 9, 2020
May 8, 2020
June 12, 2020
May 28, 2020
May 17, 2020
May 29, 2020
May 19, 2020
May 20, 2020
May 26, 2020
June 1, 2020
June 3, 2020
Until further notice
May 18, 2020
While we are not yet out of the woods, state and local government continue to ease restrictions upon life as we at least used to know it.
As pandemic pressure has eased and public demands have increased, at least 35 counties have announced their ability to accelerate their transition through “Stage 2” of California’s “Pandemic Roadmap”: the reopening of lower-risk workplaces and other spaces.
We also count 17 counties which have rescinded their local orders in order to follow just the statewide guidances: • Colusa, • Calaveras, • El Dorado, • Inyo, • Kern, • Kings, • Lake, • Mono, • Nevada, • Placer, • Riverside, • San Benito, • San Bernardino, • San Luis Obispo, • Stanislaus, • Tehama and • Yolo.
To our knowledge, and as of June 5, counties with stay at home orders in place include:
Santa Cruz County’s Guidance
Santa Cruz County’s press release
Thanks again to Daniska Coronado for this continuing compilation.
See also:
For more information about these laws or other employment issues related to coronavirus, contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
Tim Bowles
Daniska Coronado
June 5, 2020
California’s Stage Two Phased Reopening ContinuesCity or County Effective DateExpiration Date ResourcesAlameda CountyBerkeleyContra Costa CountyCulver CityFresno CityFresno CountyHumboldt CountyImperial CountyLong BeachLos Angeles CityLos Angeles County(All unincorporated areas and cities in LA County except for Long Beach and Pasadena) Marin CountyMendocino CountyMerced CountyMonterey CountyNapa CountyPalm SpringsPasadenaSacramento CountySan Diego CountySan Francisco City and CountySan Joaquin CountySanta Clara CountySan Mateo CountySanta Barbara CountySanta Cruz CountySolano CountySonoma CountySutter CountyTulare CountyVentura CountyYuba County
The Families First Coronavirus Response Act (FFCRA) provides emergency paid sick leave and additional paid family leave for a worker who must care for his/her child due to COVID-19-related school or ...
The Families First Coronavirus Response Act (FFCRA) provides emergency paid sick leave and additional paid family leave for a worker who must care for his/her child due to COVID-19-related school or other “place of care” closures. Would a summer camp closure qualify? Perhaps.
The U.S. Department of Labor (DOL)’s FAQs guidance provides that a closed summer camp or program may be considered a place of care for an employee’s child if the child was enrolled before the summer program announced its closure:
Question 93: “I took paid sick leave and am now taking expanded family and medical leave to care for my children whose school is closed for a COVID-19 related reason. After completing distance learning, the children’s school closed for summer vacation. May I take paid sick leave or expanded family and medical leave to care for my children because their school is closed for summer vacation?
“Answer: No. Paid sick leave and emergency family and medical leave are not available for this qualifying reason if the school or child care provider is closed for summer vacation, or any other reason that is not related to COVID-19. However, the employee may be able to take leave if his or her child’s care provider during the summer—a camp or other programs in which the employee’s child is enrolled—is closed or unavailable for a COVID-19 related reason.”
However, with the pandemic’s continuing uncertainties, many summer camps and programs announced closure this year prior to a family’s opportunity to enroll. In a further June 26 guidance, the DOL has confirmed that a parent’s mere interest in a camp or program is generally insufficient to qualify for such paid leaves. However, formal enrollment before a closure announcement is not strictly required. While there is no one-size-fits-all guide for eligibility, the guidance states that qualification will turn on whether the child would have attended the summer camp/program had it not closed due to COVID-19. Indicators of that intent may include:
Covered employers should proceed with caution before denying an employee’s request to use FFCRA leave due to the closure of a child’s summer program, consulting with experienced employment counsel as needed.
See also:
For more information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
Cindy Bamforth
July 9, 2020
FFCRA Paid Leave Eligibilityfor Youth Program Closure
Setting aside the vital importance of people’s spiritual ties in times of need, California (echo’ing the feds) had regarded churches “non-essential” from the March 19 start of its safer-at-home orders...
Setting aside the vital importance of people’s spiritual ties in times of need, California (echo’ing the feds) had regarded churches “non-essential” from the March 19 start of its safer-at-home orders. As pandemic pressure has eased and public demands have increased, the state has now acknowledged the religion’s role in pandemic recovery: COVID-19 “Industry” Guidance for Places of Worship and Providers of Religious Worship and Cultural Ceremonies (May 25, 2020) (Guidance).
The County and City of Los Angeles swiftly followed suit, adopting an amended Appendix F Protocol for Places of Worship to their public health orders (Orders). As the city put it: houses of worship “provide services that are recognized to be critical to the health and well-being of [Los Angeles].”
The Guidance and both Orders require religious groups to limit capacity to the lower of 25 percent of maximum allowed occupancy or 100 people.
The Guidance includes 13 pages of standards from social distancing, wearing masks, cleaning, and excluding persons who are ill to church-specific protocols such as not passing collection plates but allowing digital offerings or other safe drop boxes, shortening services, and avoiding singing and group recitation, which can cause droplets to spread.
Appendix F contains similar requirements and suggestions in checklist form for houses of worship.
The California Department of Public Health is to revisit the Guidance by June 15 for its public health impact and for phased restoration to full activity.
Permitting religious providers to re-open, albeit on a limited basis thus far, will help seekers receive spiritual guidance in the pandemic’s wholesale uprooting of people’s lives.
See also:
For more information about these laws or other employment issues related to coronavirus, contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
Helena Kobrin
June 4, 2020
State and Local Governments Now Agree Churches Are Essential
If California has been able to flatten the COVID-19 curve over the past two months, it has been by a sustained flood (pandemic?) of government directives and orders. Over the past week alone, the Stat...
If California has been able to flatten the COVID-19 curve over the past two months, it has been by a sustained flood (pandemic?) of government directives and orders. Over the past week alone, the State of California has issued no less than 26 road maps, guidance memos, and checklists relating to workplace disease prevention. Within that time, many of the state’s major cities and counties have also published sets of updated guidelines and restrictions.
As commerce ramps back up, we have completed a set of policies and protocols to aid employers in establishing the new post-pandemic “normal” these multiple state and local orders now require. These include:
To order or for more information, contact Office Manager Aimee Rosales at 626.583.6600 or email her at officemgr@tbowleslaw.com.
May, 2020
California employers must carry workers’ compensation insurance for on-the-job injuries and job-related illnesses.
California employers must carry workers’ compensation insurance for on-the-job injuries and job-related illnesses.
California governor Newsom’s May 6, 2020 Executive Order N-62-20 (the order) directs that workers contracting COVID-19-related illness between March 19 and July 5, 2020 are presumed entitled to full work comp coverage, including medical care, temporary disability, permanent disability, supplemental job displacement, vocational rehabilitation, and death benefits..
The presumption applies if the employee worked at a jobsite outside her or his home at the employer’s direction between March 19, 2020 and July 5, 2020 and then tested positive for or was diagnosed with COVID-19 within 14 days.
Employers may dispute the presumption within 30 days of the date the claim is filed with “other evidence” to prove the illness did not occur due to work duties.
The order also confirms that insurance carriers may “adjust the costs of their policies” accordingly, which likely means increased rates.
On May 19, 2020, the California Department of Industrial Relations published FAQs to clarify the diagnosis/testing criteria and to confirm the presumption applies to all workers of “essential” and “non-essential” industries or services.
Employers should consider taking these proactive steps:
See also:
For more information about this law or other employment issues related to COVID-19, contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
Cindy Bamforth
May 20, 2020
Workers Compensation Coverage for Diagnosed Workers