The California Labor Commissioner has filed her “AB 5” first lawsuit -- against Mobile Wash, Inc. of Bellflower, CA -- for misclassifying more than 100 mobile car washers as independent contractors under the state’s “ABC” test. See, The Mystery of it All – Employed or Independent? California Offers AB5 Answers (February 7, 2020)

The June, 2020 complaint alleges that Mobile Wash should classify its workers as employees and thus among other things pay minimum wage for travel time, reimburse their expenses, and cease to extract a transaction fee for tips made by credit card.

If successful, the suit would likely be catastrophic for this gig-based business, with Mobile Wash liable for minimum wage back pay, doubled “liquidated damages,” overtime for six-day, 10-hour day workweeks, rest period premiums, sick leave violation penalties, business expenses, and underpaid tips back to April 2017.

Commissioner Lilia García-Brower stated: “Willful misclassification of workers harms not only workers but law-abiding employers and the public. Under the ABC test, these workers are clearly employees and were entitled to basic labor protections. My office is committed to combatting this unlawful practice as a business model.”

Underscoring that determination, the suit also names president and CEO as a defendant under Labor Code 558.1 for allegedly causing Mobile Wash to violate the minimum wage and other requirements of the Labor Code.

Commissioner Garcia-Brower credits the Community Labor Environmental Action Network (CLEAN), a non-profit advocacy group, for bringing Mobile Wash’s alleged practices to the state’s attention.

With AB 5’s tight restrictions as well as its multiple exceptions, it is more important than ever to obtain expert advice from a management-side employment attorney before deciding to engage workers – or to continue to engage them -- as independent contractors.

See also:

• Calling Out Big Gig – California Wants Uber and Lyft Drivers as Employees (May 22, 2020)
• Roadkill – Federal Court Denies Uber Request to Stop AB5 (February 21, 2020)
• Dodging the Bullet – The Industries and Professions Not Subject to California’s New Independent Contractor Restrictions (October 9, 2019)

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

Helena Kobrin
July 30, 2020

The U.S. Equal Employment Opportunity Commission’s (EEOC) June 17 update of COVID-related guidelines (June 17 Update) offers first-time protocols for the management of aged 65-plus workers in pandemic times under the Age Discrimination in Employment Act (ADEA).

COVID-19’s unprecedented circumstances have led the EEOC to loosen many of its established restrictions against employer intrusions into worker illness symptoms and medical care otherwise dictated by Americans with Disabilities Act (ADA) and other anti-discrimination laws. See, Infection Protection, What Employers Can Ask in a Pandemic (March 25, 2020).

On the other hand, the agency has issued unequivocal reminders that pandemic conditions are not license for unlawful national origin or race discrimination or harassment, e.g., unequal or hostile treatment of Asian workers on the pretext that COVID-19 is a “Chinese” disease or the like.

Taking the CDC’s cue that 8 out of 10 COVID-19-related deaths reported in the United States have been among adults aged 65 years and older, the EEOC’s June 17 Update reminds employers they may not exclude “older adults” from the workplace just because they are reported to be more vulnerable to the pandemic’s ill effects.

“The ADEA would prohibit a covered employer [15 or more on payroll] from involuntarily excluding an individual from the workplace based on his or her being 65 or older, even if the employer acted for benevolent reasons such as protecting the employee due to higher risk of severe illness from COVID-19.”

As the ADEA only protects those aged 40-plus against discrimination relative to people younger than 40, the June 17 Update advises that ADEA does not prohibit employers from providing 65-plus employees “flexibility” to work relative to other older workers protected by the ADEA “even if it results in [those] workers ages 40-64 being treated less favorably based on age in comparison.”

The June 17 Update recognizes that no individual is entitled to reasonable accommodation due to his/her age but continues: “Workers age 65 or older also may have medical conditions that bring them under the protection of the ADA as individuals with disabilities. As such, they may request reasonable accommodation for their disability as opposed to their age.” Emphasis supplied.

Thus best management practices should include careful attention to older worker requests to remain on or return to the job and to documenting proper deliberation and decision.

See also:

• Thinking the Unthinkable; Expanding Federal Post-Pandemic Guidelines for Safeguarding Returning Personnel (April 23, 2020)
• Keep It to Yourself; Essential Workers Must Cover Up and Stay Six Feet Apart (April 16, 2020)
• When the Show Must Go On; Key Protection for an Employee’s COVID-19 Diagnosis/ Symptoms (April 8, 2020)

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

Tim Bowles
July 24, 2020

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:

• Summer Pandemic Pay - FFCRA Paid Leave Eligibility for Youth Program Closure (July 9, 2020)
• COVID-19, I Presume - Workers Compensation Coverage for Diagnosed Workers(May 20, 2020)
• It’s a Wash - COVID 19 Paid Leave and Tax Credits (April 9, 2020)
• COVID-19 Gets Noticed (April 1, 2020)

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

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:

• Know Your Boundaries, New Employer Restrictions on Hiring Notices and Interviews (June 13, 2020)
• Faith and the Pandemic; State and Local Governments Now Agree Churches Are Essential (June 4, 2020)
• Accommodating Religion in the Workplace: Avoid Employment Discrimination Gallows (March, 2011)
• Religion in the Workplace, Have Faith in the Law (September, 2009)

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

Tim Bowles
July 16, 2020

On June 28, 2020, Governor Newsom directed bars to close in five counties on the state's watch list: Fresno, Kern, Kings, Los Angeles, and Tulare. These join two other counties – Imperial and San Joaquin – with bars already subject to such mandatory closings. The state has recommended bar closings in eight other counties.

We count 19 counties which have rescinded their local orders to follow Sacramento’s statewide guidances:

• Colusa
• Calaveras
• El Dorado
• Fresno
• Inyo
• Kern
• Kings
• Lake
• Mono
• Nevada
• Placer
• Riverside
• San Benito
• San Bernardino
• San Luis Obispo
• Santa Cruz
• Stanislaus
• Tehama and
• Yolo

As of July 10, California counties and cities with stay at home orders in place include:

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:

• Faith and The Pandemic (June 4, 2020)
• Paid Sick Leave Going Viral; California Cities and Counties Expanding Pandemic-Related Benefits (May 29, 2020)
• COVID-19, I Presume; Workers Compensation Coverage for Diagnosed Workers (May 20, 2020)
• When the Show Must Go On; Key Protection for an Employee’s COVID-19 Diagnosis/ Symptoms (April 8, 2020)
• Workplace Safety Nets; The Coronavirus Outbreak and California Unemployment Benefits (March 27, 2020)

For more information about coronavirus employment issues, contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Tim Bowles
Daniska Coronado
July 11, 2020

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:

• Submission of an application and/or deposit prior to the summer program’s closure
• Recent prior attendance and current eligibility; or
• Being accepted to a waitlist pending reopening of the summer program or the reopening of its registration process

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:

• Paid Sick Leave Going Viral (May 29, 2020)
• COVID-19, I Presume (May 20, 2020)
• It’s a Wash - COVID 19 Paid Leave and Tax Credits (April 9, 2020)
• COVID-19 Gets Noticed (April 1, 2020)
• Federal Coronavirus Workplace Relief (March 23, 2020)

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

Cindy Bamforth
July 9, 2020

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:

• workers who perform the majority of their work in California; and
• workers who are “based” in California and do not work more than half their time in any other state. According to the court, “based” means California is the physical location where the worker presents himself or herself to begin work.

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:

• Payday Mayday; Read the Fine Print: Payroll Companies Not Responsible for Employer Compliance (January 24, 2020)
• Correct Paystubs Save Bucks; Learn California’s Specific Paystub Requirements to Avoid Penalties (May 3, 2018)
• Paperless Paystubs; Do They Comply with California Wage Statement Laws? (February 28, 2018)
• Strike a Blow for Employers: California Expands the Exception for Listing “Hours Worked” on Paystubs (August 31, 2016)

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

Tim Bowles
July 2, 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 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:

1. Be aware that new and temporary workers are at most risk. All workers, with special emphasis on those unaccustomed to such conditions, need to acclimatize to hot conditions.

We note that employers should be cognizant that workers who have been out for months and left at a time when temperatures were much cooler will need to reacclimatize and reacquaint themselves with the risks and protections associated with work in hot climates.

1. Ensure all workers focus on “water, rest, and shade” as their mantras for work in hot conditions. Frequent drinking of water and electrolytes and cool-down breaks in air-conditioned or shaded areas are key.

1. Use measures such as ventilation, fans, job function rotation, and scheduling work at cooler hours.

1. Know that indoor workers in settings such as foundries, boiler rooms, kitchens, laundries, and others are also susceptible to heat illness and should be given similar protection.

1. Ensure all workers in hot environments are familiar with heat illness symptoms, have them work with a buddy and watch each other for signs of illness, and notify supervisors or call 911 when needed.

1. Download and use the OSHA-NIOSH Heat Safety App on iPhones or Androids to assist in calculating the heat index in a work area, assessing the risk, and planning accordingly.

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:

• California’s Threshold for Required Heat Illness Safeguards (August, 2019)
• Summer Is Here – Are your Outdoor Workers Protected from Heat Illness? (June, 2018)
• New Regulations Coming to Prevent Heat Illness in the California Workplace (April, 2017)
• New Heat Illness Prevention Measures Now in Place (May, 2015)

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

Helena Kobrin
July 1, 2020

The California Department of Public Health issued a detailed, updated June 18 Guidance requiring cloth face coverings to limit the spread of COVID-19. The guidance’s mandatory provisions include:

Face covering in high-risk situations:

• inside of, or in line to enter, any indoor public space
• obtaining services in the health care sector (e.g. hospital, pharmacy, dental office, etc.)
• waiting for or riding on public transportation or in a taxi, private car service, or ride-sharing vehicle

• engaged in work, whether at the workplace or performing work off-site, when
• interacting in-person with any member of the public
• working in any space visited by members of the public, regardless of whether anyone from the public is present at the time
• working in a space where food is prepared or packaged for sale or distribution
• walking through common areas, such as hallways, stairways, elevators, and parking facilities
• in any room or enclosed area where other people (except for members of the person’s own household or residence) are present when unable to physically distance

• driving or operating any public or private transportation (when no passengers are present, face coverings strongly recommended)
• while outdoors in public spaces when unable to maintain a physical distance of six feet from non-members of the same household or residence.

Exemptions: Persons:

• aged two years or under (due to risk of suffocation)
• with medical, mental health or disability conditions that prevent them from wearing a mask
• who are hearing impaired, where ability to see the mouth is essential for communication
• for whom wearing a face covering would create a workplace safety risk as determined by government guidelines
• seated at a restaurant or other food or beverage establishment while they are eating and drinking (provided they are able to maintain minimum six foot distance from persons not members of the person’s own household or residence
• engaging in outdoor work or recreation, e.g. swimming, walking, hiking, etc., when alone or with household members, provided six-foot minimum distance maintained, and
• who are incarcerated (but prisons and jails directed to have their own specific guidances)

The guidance observes that a cloth face covering’s primary role is to reduce the release of infectious particles when someone speaks, coughs or sneezes, “including someone who has COVID-19 but feels well.” The guidance also reminds the public that face coverings are not a substitute for physical distancing, washing hands and staying home when ill.

California employers are responsible for ensuring compliance in their places of work.

See also:

• Faith and The Pandemic (June 4, 2020)
• Paid Sick Leave Going Viral; California Cities and Counties Expanding Pandemic-Related Benefits (May 29, 2020)
• COVID-19, I Presume; Workers Compensation Coverage for Diagnosed Workers (May 20, 2020)
• When the Show Must Go On; Key Protection for an Employee’s COVID-19 Diagnosis/ Symptoms (April 8, 2020)
• Workplace Safety Nets; The Coronavirus Outbreak and California Unemployment Benefits (March 27, 2020)

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

Tim Bowles
June 26, 2020