Higher Workplace Standards to Assist Lactating Moms

Since 2002, California has required employers to provide their lactating employees with reasonable time and adequate space to express breast milk. Effective January 1, 2020, Senate Bill (SB) 142 requires a clean, private and safe workplace location for the activity and a written lactation accommodation policy. Significant penalties apply for non-compliance.

Private room or location requirements:

Employers must provide lactating employees with a room or location that * can no longer be a bathroom; * is shielded from view and free from intrusion while expressing milk; * is safe, clean and free of hazardous materials; * contains a place to sit and a surface to place personal items; * has access to electricity or alternative devices needed to operate an electric or battery-powered breast pump; and * provides access to a sink and refrigerator (or other cooling device) in close proximity to the employee’s workspace.

Employer exemptions:

Certain employers, particularly those in multi-employer worksites, may be excused from some of the above room/location requirements. Additionally, employers with less than 50 on payroll may qualify for an undue hardship exemption in limited circumstances (e.g., if any of the lactation room requirements would cause significant difficulty or expense). However, all exempted employers must still make reasonable efforts to provide the employee with the use of a private room or other location other than a toilet stall to express milk. See, Labor Code 1031(i).

Mandatory policy:

Newly-added Labor Code 1034 further requires employers to develop and implement a lactation accommodation policy that contains:

• An employee’s right to request such accommodation and how to make the request;
• The employer’s obligation to respond to the request; and
• An employee’s right to file a complaint with the California Labor Commissioner for any alleged violations.

Employers must distribute the policy to new employees upon hiring and whenever an employer makes an inquiry about or requests parental leave.

Penalties for non-compliance:

The Labor Commissioner may cite employers for denial of reasonable break time or adequate space to express milk and impose civil penalties of $100 for each day the employer is in violation. Failure to comply with the above break time or adequate space requirements also constitute Labor Code section 226.7 rest break violations. See, Labor Code 1033(a).

For further assistance in complying with the new laws, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

See also,

• Find out What’s New in 2020 – Get Going by Knowing (January, 2020)
• New Year’s Resolution: Get Smart (December, 2019)
• What’s New for 2019 – Nursing Moms and The Workplace (November, 2018)

Cindy Bamforth

January 17, 2020

Higher Workplace Standards to Assist Lactating Moms

Lony Chaney, 1920

Employed or Independent? California Offers AB5 Answers

The hottest California employment question of late: do independent contractors still exist? The California Supreme Court’s 2018 Dynamex decision turned independent classification on its head, imposing a strict “ABC” contrary to decades of law and custom. The legislature followed suit with Assembly Bill (AB) 5, effective January 1, 2020, applying the test to virtually every aspect of labor law. We have published multiple AB5 blogs, below, for guidance on the many exceptions and uncertainties in this law.

Intending to create a “one-stop shop for online resources for workers and employers” concerning AB 5, the Labor and Workforce Development Agency (LWDA) has now posted an Employment Status Portal to assist workers and employers in understanding employee classification and related issues under AB5.

The portal contains Frequently Asked Questions (FAQ) addressing common AB5 issues, including to whom it applies and implementation.

This LWDA site portal is a good starting place to gain some understanding of AB 5. As FAQ 11 points out, there are various penalties for misclassifying workers, including $5,000 to $25,000 for each willful misclassification. More than ever, a wise California employer should seek competent legal advice before classifying anyone as an independent contractor.

See also:

• Bullet Dodging Part 6, Real Estate Agent Exemptions From Stringent Limits on Independent Contractor Status (November, 20219).
• Bullet Dodging Part 5, The Referral Agency Exception To California’s Strict Independent Contractor Definition (November, 2019).
• Bullet Dodging Part 4, Building Subcontractors’ Exemption From the Strict New Limits on Who is “Independent” (October, 2019).
• Bullet Dodging Part 3, California’s “Professional Services” Exemption To Strict Independent Contractor Definition Licensed Beauticians Among the Eligible (October, 2019).
• Bullet Dodging Part 2, California’s “Business-to-Business” Exception To Strict Independent Contractor Definition (October, 2019).
• Bullet Dodging, The Industries and Professions Not Subject to California’s New Independent Contractor Restrictions (October, 2019).

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

Helena Kobrin

Tim Bowles

February 7, 2020

Employed or Independent? California Offers AB5 Answers

Effective January 1, 2020

California law requires employers with 15 or more on payroll to provide paid organ donor leave to any employee undergoing such procedures.

Beginning January 1, 2020, employers must also provide additional unpaid time off up to a total of 30 business days for organ donor leave.

Thus, any employee undergoing an organ donation procedure may take up to 30 business days of protected paid leave in a one-year period (for which the employer may first credit up to two weeks of an employee’s accrued, unused sick or vacation/paid time off benefits), after which the employee may then receive an additional 30 days of protected unpaid leave.

Best practices include a well-written, up-to-date leave policy. Current policies, procedures and forms covering all major aspects of the workplace relationship permit managers and rank-and-file workers alike to know where they stand.

See also:

• Hot Off the Presses (February, 2020).
• Time Off for Fire Fighting, Crime Victims, Drug Rehab, School Visits, and More (June, 2018)

For further assistance in complying with the new laws, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Cindy Bamforth

March 3, 2020

California Wants Uber and Lyft Drivers as Employees

It seemed like a good idea at the time: the rapid growth of Uber-style “gig economy” business models ostensibly offering a win-win of worker freedom and consumer convenience. Yet, California government came to another conception of such arrangements: presumed exploitation. Hence enter AB 5 and its hardball “ABC” test for independent contractor classification, effective January 1, 2020. See, The Mystery of It All; Employed or Independent? (February 7, 2020).

In an opening attack, Uber and Postmates unsuccessfully sought to bar enforcement of the new law on the grounds it unconstitutionally singled them out. See, Roadkill; Federal Court Denies Uber Request to Stop AB5 (February 21, 2020).

On May 5, the state took the offensive in turn. The California attorney general and the city attorneys of San Francisco, Los Angeles, and San Diego have sued Uber and Lyft for • employee misclassification; • minimum wage; • overtime; • business expense reimbursement; • meal and rest breaks; • pay stubs; • sick leave; and much more.

The complaint contends rideshare drivers fail to meet any of part of the ABC independent contractor test:

• Free from the hirer’s control and direction in connection with the performance of the work.

The complaint argues Uber and Lyft maintain control over their drivers in a multitude of ways including dictating what passengers they can drive, what cars they can use, setting rates, determining pay, invoicing, handling driver and passenger issues, controlling routes, logging drivers off their app for the company’s own reasons, and many more.

• Performs work that is outside the usual course of the hiring entity’s business.

Using the companies’ public filings, the complaint states the companies are transportation companies selling on-demand rides to their customers and providing the drivers to supply those rides. Thus, the companies are not “mere technology companies” as they argue, but are “deeply enmeshed in the provision of transportation services.”

• Customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity.

The complaint claims that Uber and Lyft drivers do not have their own transportation businesses, their driving requires no special skills or training, they do not have investments in their driving beyond a vehicle and a smartphone, and more. It also argues that the limited choices drivers have, such as when to drive, do not meet the normal decision-making level of business owners.

The process shall continue. Uber and Lyft will defend vigorously (first court appearance not until October 7) while exploring all other options, including greater driver independence in their business models as well as a possible ballot initiative to repeal or revise AB 5.

The initiative process – requiring the proponent to gather signatures from a minimum 5% of the number of people who voted in the most recent election for governor within 180 days – will no doubt be challenging in our pandemic times.

Whatever the outcome of this battle of titans, the state is turning resources back to perhaps the hottest workplace issue in play before the pandemic hit. California business still engaged in decisions over worker classification are best advised to finish that work.

See also:

• Bullet Dodging Part 6, Real Estate Agent Exemptions from Stringent Limits on Independent Contractor Status (November, 2019).
• Bullet Dodging Part 5, The Referral Agency Exception to California’s Strict Independent Contractor Definition (November, 2019).
• Bullet Dodging Part 4, Building Subcontractors’ Exemption from the Strict New Limits on Who is “Independent” (October, 2019).
• Bullet Dodging Part 3, California’s “Professional Services” Exemption to Strict Independent Contractor Definition Licensed Beauticians Among the Eligible (October, 2019).
• Bullet Dodging Part 2, California’s “Business-to-Business” Exception to Strict Independent Contractor Definition (October, 2019).
• Dodging the Bullet, The Industries and Professions Not Subject to California’s New Independent Contractor Restrictions (October, 2019).

For assistance in correct classification decisions, contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Helena Kobrin

May 22, 2020

California Wants Uber and Lyft Drivers as Employees

California Remodels Exceptions to Its Strict Independent Contractor Test

Beginning with the California Supreme Court’s Dynamex Operations West, Inc. v. Superior Court decision (April, 2018) and continuing with the passage of AB 5, effective January 1, 2020, state policymakers have sought to limit the definition of “independent contractors” under a severe ABC test.

The trend has been aimed particularly at curtailing the independent contractor model exemplified by gig economy giants such as Uber and Lyft. See, Game Changer – Independent Contractor Status in California Now Falls Under Radically Different Rules (June 1, 2018); California’s Independent Contractors, An Endangered Species by Newly Enacted AB5(October 4, 2019).

Widespread dissatisfaction over AB 5’s limited exemptions has led Sacramento to replace that law with AB 2257, effective September 4, 2020. The new standards – found in Labor Code sections 2775-2783 – uphold the ABC test while restating and broadening the exceptions, including:

• Wider business-to-business exceptions including one for sole proprietor services “at the location of a single-engagement event”;
• An expanded referral agency exception in all service industries except high hazard and “janitorial, delivery, courier, transportation, trucking, agricultural labor, retail, logging, in-home care, or construction services other than minor home repair”;
• Exceptions for professional services, including marketing; human resources; travel agency; graphic design; grant writing; fine artists; enrolled agents (certain tax consulting); payment processing; still photography; photojournalism, videography, photo editing, and digital content aggregators servicing such persons; licensed esthetician, cosmetologist, electrologist, barber, and manicurist services; specialized performer teaching master classes; appraiser; registered forester; real estate licensee; home inspector; and repossession agency;
• Several creative activities, including creation of sound recordings and musical compositions; film and television unit production crews; individual musicians performing original creations; and individual performance artists;
• Certain contractor – subcontractor relations in the building trades;
• Data aggregators (e.g. online customer and website use info); and
• Doctors, lawyers, dentists, psychologists, veterinarians, lawyers, architects, landscape architects, engineers, private investigators, accountants, and certain insurance industry professionals.

Such excepted businesses and individuals must still meet the multi-factor balancing test for independence specified in the California Supreme Court’s 1989 Borello Sons Inc. v. Dept. of Industrial Relations decision. See Dodging the Bullet – The Industries and Professions Not Subject to California’s New Independent Contractor Restrictions (October 2019).

We will address particular features of the new law in upcoming articles.

See also:

• Making Dynamex Retroactive – Federal Appeals Court Rules New Independent Contractor ABC Test Applies Before It Existed (May 31, 2019)
• Independent Contractor or Employee? – California Legislature Dealing with Competing Proposals to Kill or Expand New Dynamex Test (April 19, 2019)
• Independent Contractor Status? It Depends – Radically New Dynamex Test Only Applies to Certain Employee Classification Cases (November 9, 2018)

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

Helena Kobrin

September 11, 2020

California Remodels Exceptions to Its Strict Independent Contractor Test

Cow decorated for Mattu Pongal, 1996

Photo: Sue Bodenlos: khosla.com

Harvest Festivals Not an American Innovation

With all due respect to the many who regard America’s Thanksgiving as the biggest holiday of the year, there are currently some 7.35 billion people on this planet for whom this coming Thursday will be just another day. Alternatively, for example, please note:

• Mid-Autumn (Mooncakes) Festival, China and Vietnam: A late-September/early-October full moon harvest celebration, giving thanks to the harmonious union of family and friends;
• Chonburi Buffalo Races, Ban Bueng and Nong Yai Districts, Thailand: An October celebration to precede the rice harvest, featuring outrageously adorned water buffalos competing for speed, stamina and fashion;
• Pongal Festival of the Sun, Tamil Nadu, India: A January multi-day Tamil community harvest festival of South India, dedicated to the Hindu sun god Surya with cows enlisted for decoration, ritual bathing and parades; and
• Asogli Te Za (Yam Festival), Volta Region, Ghana: An August/September commemoration to the ripening of the yams.

Whatever your custom or preference, Happy Thanksgiving!

November 27, 2019

Harvest Festivals Not an American Innovation

Expanded State Approval Powers Over “Baby” Entertainers

California has long regulated the “employment” of infants in the movies. Labor Code 1308.8 bans babies under 15-days old while requiring physician certification for our “older” new arrivals (aged 15-days to “under one month”) to work on any “motion picture set or location.”

Beginning January, 2020, Assembly Bill (AB) 267 will apply such “micro-age” prohibition and certification standards to the entire “entertainment industry,” now defined (new Labor Code 1286(f)) in this digital age as:

• motion pictures of any type and format (for example, “theatrical film, commercial, documentary, or television program”) and by any medium (e.g., theater, commercial or videocassette), plus
• “photography;
• “recording;
• “modeling;
• “theatrical productions;
• “publicity;
• “rodeos;
• “circuses;
• “musical performances;
• “advertising; and
• “any other performances where a minor performs to entertain the public” (emphasis supplied).

This broader “entertainment industry” scope understandably applies to the labor regulation of all minors under age 18. Yet, read literally, the expanded definition means that no precocious newborns two-weeks old or younger may bull ride (rodeo) or swallow swords (circus), period. Other babies not yet a month-old could in theory do so, but would require written certification from “a licensed physician or surgeon who is board-certified in either pediatrics or family medicine.”

Perhaps slightly more to the point is the uncertainty of just how far this Labor Code ban and written certification requirement applies to newborns engaged in “photography…modeling…and any other performances where a minor performs to entertain the public.” Would that not be every such baby picture and video posted on Facebook, Instagram and any other social media medium?

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

Tim Bowles

November 15, 2019

Expanded State Approval Powers Over “Baby” Entertainers

Senior Managers Must Prevent Supervisor Harassment, Discrimination

It is illegal for employers to discriminate against or harass employees because of age, national origin, and other protected classifications. An employer that terminates an employee for such reasons can anticipate a lawsuit for wrongful termination. Also, an employee resignation due to a discriminatory work environment created or condoned by the employer may amount to a wrongful “constructive” termination if those conditions are found intolerable.

In the recent Galvan v. Dameron Hospital Ass’n decision, a California appeals court agreed supervisor Doreen Alvarez may have harassed and discriminated against 54-year-old Filipino nurse Shirley Galvan and three other foreign-born nurses with insulting, degrading and humiliating statements. Her stated intention to others was to get rid of these nurses for reasons based on age and foreign birth.

After Ms. Alvarez terminated one nurse and caused so much stress the other two resigned or went on leave, Ms. Galvan also went out on stress-related disability leave and did not return. She then sued the employer.

While the trial judge had ruled in favor of the hospital, the three-judge appeals panel sent the case back for a trial, ruling that Ms. Galvan’s claims for wrongful discharge, discrimination, and harassment were supported by the bad behavior of her supervisor. Even though the hospital administration was unaware of Ms. Alvarez’s behavior, the Court found her actions as a supervisor constituted intentional behavior by the hospital.

To avoid such lawsuits and ensure their employees are treated well, senior managers should:

• Proactively seek to know what is going on with their workforce;
• Have clear policies;
• Remind employees regularly to report bad behavior, whether targeting themselves or others;
• Take action to prevent such behavior and correct it when it does arise;
• Consult their employment attorney for advice to avoid such situations and to deal with them when they occur.

See also:

• State Agency Settles Sex and National Origin Discrimination Case for $450,0000 (September, 2019)
• Google Settles Age Discrimination Case for $11 Million (September, 2019)
• National Origin Discrimination Clarified (June, 2018)
• Employee Terminations (April, 2018)

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

Helena Kobrin

September 23, 2019

Senior Managers Must Prevent Supervisor Harassment, Discrimination

North Star Gas Ltd. (NSG) has settled a California Civil Rights Department (CRD) age discrimination claim, with $37,000 paid to the fired truck driver.

The CRD alleged a NSG manager justified a cut in the actively driving worker's assignments because he was "too old" and "retired." NSG reportedly then fired the worker for his age (40 or over) in violation of the California Fair Housing and Employment Act.

NSG has also agreed to issue and distribute policy to detect and prevent unlawful harassment, discrimination, and retaliation; to designate an employee to investigate complaints; and to report compliance to CRD.

CRD Director Kevin Kish stated: "If you believe you've been discriminated against on the job because of your age, report it to our office. We're committed to doing everything in our power to ensure older Californians are treated with dignity and respect. The settlement announced today makes it clear that no matter your industry or job, we all deserve a fair chance to make an honest living as we grow older."

Take-Aways:

Those 40 and older have the same rights as other employees. Companies must base decisions on employee competence and ability, not on protected characteristics such as age.

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

See also:

• Take Heed: Responding to Harassment and Discrimination Complaints Correctly (July 28, 2023)
• Age Discrimination: Employee's Suspicion Not Enough: Older Worker Needs More Than Her Belief of Unequal Treatment (March 10, 2023)
• Boss Sauced: Senior Managers Must Prevent Supervisor Harassment, Discrimination (September 23, 2019)

Helena Kobrin
Apri1 19, 2024