Through the confusion raging around the state-to-state spread of coronavirus disease 2019 (COVID-19) comes at least one federal agency seemingly prepared to effectively guide employers and employees alike to detect, correct, and ultimately protect.

Out of the 2009 “H1N1” pandemic, the Equal Employment Opportunity Commission (EEOC) issued "Pandemic Preparedness in the Workplace and the Americans with Disabilities Act" (Guide), now updated along with a summary “What You Should Know About the ADA, the Rehabilitation Act, and COVID-19” (COVID Circular) publications to address their application to COVID-19.

The Guide explains a "pandemic" as a global "epidemic," identifying five influenza pandemics over the last 100 years:

• the deadly "Spanish Flu" of 1918; the milder
• "Asian" and
• "Hong Kong" flus of the 1950s and 1960s
• the 2003 SARS outbreak
• the 2009 H1N1 flu; and
• COVID-19, declared a pandemic on March 11, 2020

The EEOC is responsible for enforcement of the 1991 Americans with Disabilities Act (ADA), protecting disabled workers from discrimination. In normal times, the ADA’s guidelines overwhelmingly seek to protect employee privacy by barring managers from directly asking about possible illness, ailments, diagnoses, sending employees home for certain symptoms, or taking their temperatures. These of course are no longer normal times. Finding COVID-19 to constitute a "direct threat" ("a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation”), the Guide and Covid Circular have rewritten the rules to place employer and co-worker need to know to the fore.

Thus, managers may now make disease-related inquiries and impositions the ADA guidelines would otherwise condemn in any milder context. The Guide now confirms employers may ask questions and require compliance deeply invasive of individual worker privacy. For example, in these pandemic “direct threat” conditions the EEOC now permits an employer to:

• Send an employee home who displays influenza-like symptoms (for example, fever, chills, cough, shortness of breath, or sore throat). That the worker may be afflicted with no more than the common cold or not contagious is irrelevant
• Ask an employee who is feeling ill or calling in sick if he or she is experiencing influenza-like symptoms, provided management maintains all such acquired illness information as a confidential medical record. In normal times, employers would be limited to asking about an evidently ill employee’s ability to fulfill his/her job duties, not about the particular afflictions or symptoms that person was experiencing
• Measure worker body temperature, again as long as management maintains the information obtained as a confidential record. This action is normally barred as it’s considered a medical examination
• COVID-19 questions to employees returning from travel: Under the current emergency, an employer need not wait until that person has developed symptoms to ask questions about exposure to COVID-19 influenza during the trip; and
• Questions to employees on susceptibility to influenza: As perhaps the greatest intrusion clearly prohibited during non-pandemic times, if a public health official assesses pandemic conditions to be “severe” (as the officials at every level have already done with COVID-19), then an employer may have justifiable grounds to ask a worker for any health condition that makes him or her more susceptible to influenza and to even require medical examinations of asymptomatic employees to identify those at higher risk of complications.

California’s Department of Fair Employment and Housing (DFEH) issued similar but in some instances more restrictive standards on March 20, 2020. For example, the DFEH’s guidance does not address employer ability to ask an asymptomatic employee if she/he has any at-risk condition or to require any such asymptomatic employee to submit to a COVID-19-related medical examination.

With federal, state and local responses to the current crisis rapidly evolving, it is a good idea to consult with experienced legal counsel for assistance on COVID-19 related personnel decisions.

Best employer practices can and should also include policies and procedures that place workers on notice of the above management prerogatives under pandemic conditions. All concerned are then informed of the otherwise unusual rules and lessened privacy protections demanded by a public health threat that discriminates in favor of no-one.

See also:

• Holding Firm (March 2020)
• Federal Coronavirus Workplace Relief (March 2020)

For more information about these laws or other employment issues related to coronavirus, contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Tim Bowles
March 25, 2020

On March 18, President Trump approved several coronavirus emergency measures for employees and employers, portions of the Families First Coronavirus Response Act (Act).

Two sections enhance worker leave (or “furlough”) benefits. The Emergency Paid Sick Leave Act (PSL Act) provides a new nationwide coronavirus paid sick leave. Emergency Family and Medical Leave Expansion Act (EFMLA) amends the Family Medical Leave Act (FMLA) to provide additional paid family leave tailored to coronavirus issues. Both laws:

• Apply to private employers in any industry affecting commerce with 500 or fewer employees while empowering the Secretary of Labor “to exempt small businesses with fewer than 50 employees” if “such requirements would jeopardize the viability of the business as a going concern”;
• Calculate the benefit rate by the “regular hourly rate” formula used for overtime compensation over an employee’s normal work hours or by a six-month average pay rate for those individuals working variable hours;
• Prohibit retaliation against employees who avail themselves of a leave under the Act or who or institute or testify in any proceeding related to the Act;
• Permit employers to exclude health care providers and emergency responders from these rules;
• Have different rules for employers with collective bargaining agreements; and
• Take effect April 2 and expire December 31, 2020.

Emergency Paid Sick Leave Act

The PSL Act provides for 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 or because:

“(1) The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID–19.

“(2) The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID–19.

"(3) The employee is experiencing symptoms of COVID–19 and seeking a medical diagnosis.

“(4) The employee is caring for an individual who is subject to an order as described in subparagraph (1) or has been advised as described in paragraph (2).

“(5) The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID–19 precautions.

“(6) The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.”

The PSL Act provides:

• Employer may not require an employee to use other paid leave before using this federal leave benefit;
• Employer may not require employee to find a replacement;
• Benefit is available regardless of how long (or short) someone has been employed:
• There is no carryover to the next year; and
• Employer must post a notice of these leave rights and rules where employee notices usually posted. The Secretary of Labor is to provide a sample poster by March 25.

For reasons (1), (2) or (3) above, the maximum amount of pay is $511/day and $5,110 total. For reasons (4), (5) or (6) above, the max is two-thirds of the employee’s regular rate or the highest applicable state, federal, or local minimum wage, to a maximum of $200/day and $2,000 total.

An employer’s failure to provide such benefits is a violation of the minimum wage provisions of the Fair Labor Standards Act (FLSA) and may be penalized accordingly.

While the PSL Act lacks California’s required listing of available leave benefits on pay stubs, best practice would be to add an appropriate entry in any event.

Emergency Family and Medical Leave Act

The EFMLA amends the FMLA for the coronavirus emergency.

The first 10 days of coronavirus FMLA leave is unpaid, but an employee may use any paid vacation, sick, medical or personal leave during this time.

While FMLA leave is ordinarily unpaid, the EFMLA requires that coronavirus-related FMLA leave is paid after the 10 work days of leave and up to caps of $200/day and a $10,000 total (daily benefit rate linked to worker’s usual compensation levels). Any remaining qualified leave will be unpaid up to the worker’s return deadline required for reinstatement.

In addition to existing grounds for a FMLA leave, the EFMLA permits leave for an employee to care for a minor child because school or child care has been closed or where a child care provider is unavailable because of a declared COVID-19 public health emergency.

Eligibility only requires 30 calendar days employment prior to the leave. An employee must provide advance notice if the need for the leave is foreseeable.

The EFMLA requires reinstatement to the same or an equivalent position, but not if the company has fewer than 25 employees or the position no longer exists due to intervening economic conditions or other operating changes caused by the public health emergency. If there is no equivalent position, the employer must make reasonable efforts to contact the employee if one becomes available. The restoration obligation is essentially for one year subject to two alternate calculation rules.

Federal Tax Credits for Employers

While the employer benefit obligations may be significant, new tax rules create a 100% wash by employment tax credits up to the leave amounts paid.

See also:

• Holding Firm (March 2020)

For more information about these laws or other employment issues related to coronavirus, contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Helena Kobrin
Tim Bowles
March 23, 2020

As a close observer of the 2014-2015 Ebola outbreak from my West African work, the most precious commodity in the current pandemic is knowledge. Please consider this eight-minute COVID-19 video for a concrete understanding of the actual challenge we all face and the simple actions necessary to place this ordeal firmly in the rear view mirror.

We are thus holding firm to help our clients, readers, and communities with the needed information, education and counseling on the workplace impact of this rapidly changing scene. This includes an accelerated series of e-letters, most coming soon, covering major concerns, including:

• Telecommuting in Response to Coronavirus Outbreak (March 18, 2020)
• The federal “Families First Coronavirus Response Act,” making well over half of the American workforce potentially eligible for paid leave for the remainder of the year, going into effect April 2, 2020 (e-letter coming soon)
• Employer Coronavirus safety actions under the Americans with Disabilities Act (e-letter coming soon; in the meantime, see current federal guidelines)
• California’s accelerated and broadened unemployment benefits for Coronavirus-affected workers (e-letter coming soon; in the meantime, see current government summaries); and
• California employer tax reporting and payment relief actions (e-letter coming soon; in the meantime, see current government summaries)

We move through these times together. If you have specific questions regarding response to the pandemic’s effects on the workplace, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Tim Bowles
March 19, 2020

Like many companies, Apple has a practice of checking retail workers’ bags and personal electronic devices after they clock out as a theft prevention measure. In a February 2020 ruling, the California Supreme Court directed that Apple must compensate such employees for that time, including retroactive payment of amounts owed.

California’s Wage Orders require worker compensation for all hours worked, including all time an individual is under the employer’s control.

Apple argued the time employees waited for and then went through the process should not count as these workers supposedly had the choice to avoid the check by not bringing any bags or devices to the job. The court disagreed, finding Apple exerted control by requiring workers to remain on premises for a typical five to 20 minutes off-the-clock for a manager or security guard to open every bag, briefcase, backpack, and the like, unzip closed compartments, move or remove items, and review any personal devices. The court also observed employees could be disciplined if they did not comply and concluded the checks were clearly for Apple’s benefit.

On Apple’s “the checks are optional” contention, Chief Justice Cantil-Sakauye wrote: “The irony and inconsistency of Apple’s argument must be noted. Its characterization of the iPhone as unnecessary for its own employees is directly at odds with its description of the iPhone as an ‘integrated and integral’ part of the lives of everyone else. As [one of the briefs supporting the workers] aptly observes, ‘Apple’s position everywhere except in defending against this lawsuit is that use of Apple’s products for personal convenience is an important and essential part of participating fully in modern life.’ Given the importance of smartphones in modern society, plaintiffs have little true choice in deciding whether to bring their own smartphones to work (and we may safely assume that many Apple employees own Apple products, such as an iPhone)."

The court contrasted Apple’s practice with pre- and post-work procedures where workers have a real option of not being under the employer’s control, such as not being required to wait for and riding a company-sponsored shuttle bus to and from the front gates of Disneyland.

Employers should take care not to require workers to do any tasks either before or after being on the clock. Best practices include consulting with employment counsel on such issues.

See also:

• Every Minute Counts (September 2018)

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

Helena Kobrin
Tim Bowles
March 12, 2020

California’s Fair Employment and Housing Act (FEHA) and its federal counterpart, the Civil Rights Act of 1964, are designed to protect employees from unlawful discrimination.

The FEHA also established the Department of Fair Employment and Housing (DFEH) to investigate, mediate and prosecute workplace discrimination complaints. It is the largest state civil rights agency in the nation.

California was not always known for its vigorous anti-discrimination efforts. In 1850, the new state legislature rescinded Native Americans’ claims on land and other rights of citizenship and banned African Americans from homesteading public land, sending their children to public schools and using public transportation. In the 1920s and 1930s, California condoned the restricted sale or occupation of real property on the basis of race, ethnicity, religion and social class.

Anti-discrimination bills failed to pass California State Legislature in the mid-1940s and early 1950s. The FEHA and its companion Unruh Civil Rights Act (named for its author, Jesse Unruh) became law in 1959, together barring discrimination in the workplace, housing and business establishments on the basis of race, religion, national origin and ancestry in the workplace and declaring all Californians “free and equal.” These laws now protect some 14 classifications against discrimination, including race, color, ancestry, national origin, religion, creed, age (over 40), disability (mental and physical), sex, gender (including pregnancy, childbirth, breastfeeding or related medical conditions), sexual orientation, gender identity, gender expression, medical condition, genetic information, marital status, and military and veteran status.

A 1992 amendment to the FEHA permitted actual damages, punitive damages and reasonable attorneys’ fees to be awarded to successful plaintiffs in discrimination law suits.

The California Family Rights Act (CFRA) became law in 1993, granting “secure leave” rights to employees in companies with 50 or more on payroll for the birth of a child, during placement of a child in the employee’s home for adoption or foster care, for the serious health condition of the employee’s child, parent or spouse, and for the employee’s own serious health condition.

The New Parent Leave Act (NPLA) (2018) expanded the reach of CFRA by requiring businesses with 20 or more on payroll employees to provide eligible employees job-protected leave for the birth of a child or the placement of a child for adoption or foster care.

The DFEH is responsible for enforcement of all these state laws.

Each year seems to bring new developments in this critical area. Accordingly, California businesses with five or more employees are now required to train managers (minimum two hours) and all other workers (minimum one hour) on discrimination, harassment and retaliation prevention and handling, beginning in 2020 and every two years afterwards. New hires must be trained within six months of employment. See, Prevent No Consent Torment (January, 2020)

For further assistance in the scope and application of these laws, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin. For more information, costs or to schedule an on-site training contact our office manager Aimee Rosales at (626) 583-6600 or officemgr@tbowleslaw.com.

Tim Bowles
March 5, 2020

A concept born with the 1800s Industrial Revolution , “at will” employment is proclaimed to survive in every American state except Montana as the right of either employer or employee to terminate their relationship for any or no reason at any time, with or without advance notice.

Yet, the principle has changed significantly over the past century.

“At will” employment originally included an employer’s unqualified right to fire anyone, “at will,” for any reason. Addressing the realities of unequal bargaining power between management and rank-and-file workers, the 1935 National Labor Relations Act banned terminating employees for their union membership or other pro-union support. In the same period, organized labor’s growing influence established standing employment contracts in key industries that required “good cause” justification for a union member’s termination. Similar “good cause” requirements have evolved to protect government employees.

The landmark Civil Rights Act of 1964 signaled further (and overdue) protections against management’s unquestioned abilities to end employment relationships, making it illegal to terminate for the race, color, sex, national origin or religion of the worker. The Act’s principle of “classifications” protected from workplace discrimination has since grown to an extensive list under federal and state laws. These include the federal Age Discrimination Employment Act shielding employees 40-plus years old and the Americans with Disabilities Act similarly safeguarding disabled workers otherwise qualified to competently perform assigned labors.

Thus, while “at will” is still the presumed employment relationship in California and many other states, termination for “any reason” no longer means what it did 100 years ago. Termination for “any reason except those found by Congress, a state legislature or the courts to be an illegal reason” would be more accurate.

Law Offices of Timothy Bowles
February 26, 2020

In a blow to the gig economy, a Los Angeles federal court has ruled that Uber, Postmates and two individual plaintiffs are unlikely to succeed on their constitutional challenges to AB5. Olson v. State of California (Olson).

While noting the potential harm Uber and the other plaintiffs face from AB5’s rigid “ABC” standard for classifying independent contractors, the judge found more important the state’s legitimate “interest in protecting exploited workers to address the erosion of the middle class and income equality” and in “preventing misclassification of millions of workers.”

The court also rejected the Uber plaintiffs’ argument that gig economy workers should be exempted from AB5 as are other specifically named occupations and industries. The judge agreed with the state that AB5 legitimately distinguishes these other working relationships as requiring “business organization, skill, self-direction, self-pricing, shorter or less frequent work terms, a distinct location, specific type of work, and other hallmarks of independent status.” Even if these AB5 exemptions resulted from various industry lobbying efforts, the court found such exceptions do not mean the legislature unconstitutionally chose to harm others.

While the plaintiffs might still win their Olson case at a full trial several months from now (note: the State of California is asking the judge to dismiss the suit), Uber is reportedly moving to give their drivers even greater independence to forestall state challenges. See, e.g., AB 5 is already changing how Uber works for California drivers and riders, Los Angeles Times, February 3, 2020.

Independent contractor classification remains in the forefront of California employment law issues. With heavy penalties and even criminal prosecution at stake, a business’s prompt and thorough examination of its contractor relationships with the aid of knowledgeable legal counsel is a smart move.

See also:

• Employed or Independent? California Offers AB5 Answers (February 2020).
• 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 more information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Helena Kobrin
Tim Bowles
February 21, 2020

All U.S. employers must verify identity and work authorization for each employee hired within the U.S., including citizens and non-citizens, using “Form I-9, Employment Eligibility Verification” (the I-9 Form or Form).

The I-9 form directs the employee to present specified documents evidencing identity and employment authorization and sign Section 1 upon hire. The employer must: (i) examine these documents to determine whether they reasonably appear genuine and relate to the employee; (ii) record the document information on the form; (iii) retain the fully-completed form for a designated period (either three years after the date of hire, or one year after the date employment is terminated, whichever is later); and (iv) make the form available for inspection by authorized government officers.

On January 31, 2020 the U.S. Citizenship and Immigration Services (USCIS) issued the revised I-9 Form (Rev. 10/21/2019). Employers may continue using the 2017 version until April 30, 2020. The minor changes include:

Form. Added new countries when selecting a foreign passport (sections 1 and 2); and

Instructions. Updated USCIS’s website addresses and DHS Privacy Notices, and clarified the list of acceptable documents and who can be an authorized employer representative.

The USCIS also published a supplemental document for use if more than one preparer and/ or translator assisted the employee in completing Section 1.

For general guidance, employers can download the USCIS’s comprehensive “M-274: Handbook for Employers: Guidance for Completing Form I-9” (Handbook), which includes information on completing and correcting the form, reverifying or updating employment authorization, and frequently-asked questions.

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

Cindy Bamforth
February 14, 2020

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