Protect Workers from Injury – It’s the Law – and the Right Thing to Do

While installing solar panels for Nexus Energy Systems, Inc., one of its workers fell 15 feet, landing on concrete and breaking his wrist and jaw. The resulting investigation yielded several Cal/OSHA citations, including one for a prior injury the company had not addressed, totaling $193,905.

Cal/OSHA found Nexus failed to safeguard workers from such mishaps, offered no prevention training and provided no effective heat illness protection.

On the prior incident (three months earlier), the agency ruled Nexus had neglected to investigate electrical burns suffered by another installer or to implement safety measures as a result.

In a public announcement, Cal/OSHA Deputy Chief of Enforcement Debra Lee stated: “Falls from roofs are often deadly, and that is why employers must protect their employees from fall hazards and provide effective training. This employer was aware of these dangers and ignored its responsibility to address them.”

While not all California employees work in such inherently dangerous conditions, every California employer must have an illness and injury prevention program. Online Cal/OSHA tools can help to create such a program. Cal/OSHA also provides resources for avoiding various types of injuries as well as general safety. For example, the agency publishes a construction industry brochure and offers training seminars.

See also:

• Cautionary Tales Episode 19: Don’t Skimp on Workplace Safety Measures (October 2018)
• Cautionary Tales Episode 14: Illness & Injury Prevention Programs are Mandatory in California (July 2018)
• Summer is Here – Are Your Outdoor Workers Protected from Heat Illness? (June 2018)

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

Helena Kobrin

July 19, 2019

RESIDENTIAL CARE FACILITY NOT FEELING THE LOVE

708,521 Reasons to Pay Workers Legally

Not having worker’s compensation insurance for five years was bad enough, but when the Labor Commissioner’s Office started investigating a workers’ compensation complaint against 53-bed Amore Retirement Living, it also discovered failure to pay minimum wage, overtime, and other wage and hour violations. See News Release No. 2019-54 (July 2019).

Although 48 employees averaged 58 hours a week for 28 months up to October 2017, Amore had not paid them overtime or provided meal breaks. It also did not pay 29 employees the one-hour premium required for split shifts. See Local Minimum Wage Rates Can Affect Split Shifts (December 2018).

The investigation resulted in $469,103 in workers’ compensation citations in 2018 against the parent company, Krysella Trismeo Corporation. This month, the Labor Commissioner has also cited the parent company and its CEO, Sheryll Miranda-Sunga, $708,521 for the wage and hour violations, consisting of $623,871 for unpaid minimum wages and overtime, “liquidated damages” (automatically double the minimum wages owed), and meal period and wage statement violations as well as $7,766 in unpaid contract wages. The citation also includes another $84,650 in civil penalties.

As the state’s press release stated, California Labor Secretary Julie A. Su stated: “This residential care facility required its workers to be available around the clock but didn’t pay them a just day’s wages. In industries where employees are expected to work overtime or on call, California law requires that they be paid for all hours worked. Anything less is wage theft.”

It is not uncommon for the state to find wage violations during a workers’ compensation investigation. As Secretary Su observed: “Enforcement investigations typically include a payroll audit of the previous three years to determine minimum wage, overtime and other labor law violations, and calculate payments owed and penalties due.”

Obviously, compliance with applicable wage and hour standards is not just a good idea, it’s a survival point, for all concerned.

See also:

• Cautionary Tales Episode 8: Adult Care Facilities Must Pay Minimum Wage and Overtime or Face Expensive Consequences (February 2018)
• Cautionary Tales Episode 7: Paying Live-In Caregivers “Daily Flat Rate” Can Be a Very Expensive Mistake (November 2017)

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

Helena Kobrin

July 12, 2019

New California Law Takes Effect January 1, 2020

California law has long-prohibited workplace racial discrimination against employees and applicants. The state is now the first to link natural hairstyles to race, thus protecting their wearers from disparate treatment.

The Legislature based passage of revised Government Code 12926 on a finding that workplace dress and grooming codes prohibiting “protective hairstyles” have had a negative impact against African Americans. Such policies were more likely to deter Black applicants from applying and to burden or punish Black employees.

Effective January 1, 2020, the new law will prohibit California employers with five or more on payroll from discriminating against workers for their natural hairstyles:

• “Race” “is inclusive of traits historically associated with race, including, but not limited to, hair texture and protective hairstyles.”
• “Protective hairstyles” includes, but is not limited to, “such hairstyles as braids, locks, and twists.”

Prevention of race discrimination claims begins with educating management and workers alike through training and well-written, updated workplace dress code policy and protocols.

See also:

• Hairstyle Discrimination (March, 2019)
• How to Address the Employee Dress Code(September, 2018)
• CA Labor Laws 2013: Religious Dress and Grooming and Employers’ Increased Duties to Accommodate(February, 2013)

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

Cindy Bamforth

July 11, 2019

State Settles Sexual Harassment Case with Cypress Police Department

The California Fair Employment and Housing Act (FEHA) defines sexual harassment as unwanted sexual advances, or visual, verbal or physical conduct of sexual nature. This includes same-sex harassment, offering employment benefits in exchange for sexual favors, or retaliating after receiving a negative response to sexual advances.

On June 17, 2019 the California Department of Fair Employment and Housing (DFEH) announced the $150,000 settlement of a police officer’s sexual harassment case against the City of Cypress Police Department (Police Department).

The complainant, a male police officer, alleged that his male sergeant repeatedly stated, “I love you,” made sexually charged intimations, and forcefully hugged him repeatedly throughout an 18-month period. The complainant also alleged he suffered retaliatory action shortly after filing his complaint with the Police Department’s human resources division.

As DFEH Director Kevin Kish commented, “Unlawful sexual harassment does not have to be motivated by sexual desire. Sexual harassment may involve harassment of a person of the same gender as the harasser, regardless of either person’s sexual orientation or gender identity.”

In addition to the $150,000 monetary settlement, the sergeant will receive anti-harassment training.

Employers should always proceed with care when responding to an employee’s sexual harassment complaints. In addition to sexual harassment prevention training and well-worded anti-harassment policy, employers should ensure managers and workers alike are properly educated on various forms of unlawful harassment, discrimination and retaliation.

We provide live on-site anti-harassment seminars for all employees for a flat fee.

Contact officemgr@tbowleslaw.com for more information and to schedule your seminar.

See also:

• Required Training on Sexual Harassment Prevention (May, 2019)
• Harassment Prevention Training is Mandatory in California, 2019 Deadline (February, 2019)
• California’s Increased Protections Against Harassment (January, 2019)
• #Metoo and The Workplace (December, 2018)
• Speaking Out Against Sexual Harassment (December, 2017)

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

Cindy Bamforth

July 3, 2019

$13.25 (25 or fewer employees)

Effective July 1, 2019

California minimum wage currently is $12.00 per hour for employers with 26 or more employees and $11.00 for employers that employ 25 or fewer. Annual increases will continue each January 1 until they reach $15.00 per hour in 2022 for larger employers and in 2023 for employers with 25 or fewer employees.

The nine California cities and two counties listed below will increase their local minimum wage rates effective this July 1, 2019. See the UC Berkeley Center for Labor Research and Education listing for regular updates.

and $14.25 (26 employees or more)

and $14.25 (26 or more employees)

Some cities have enacted separate minimum wage laws for hotel workers that also change July 1, 2019. For example, the minimum wage for hotel workers will be $14.97 in Long Beach (all hotels), $16.63.in Santa Monica (all hotels), and $16.63 in City of Los Angeles (hotels with 150 or more rooms). In addition, on May 29, 2019, Emeryville passed an amendment to its minimum wage ordinance, section 5-37-.02 of the Emeryville Municipal Code, which makes the minimum wage for small independent restaurants – having fewer than 21 locations globally — $15.00 as of July 1, 2019. On July 1, 2020, that rate will increase to 93 percent of the minimum wage for employers that are not small businesses, with an additional one percent of that amount added each year on July 1 until those businesses are paying the same minimum wage rate as other businesses as of July 1, 2027.

Non-profit charitable organizations should check for possibly slower implementation requirements under applicable local ordinances.

A covered employer must also conspicuously post an updated wage notice for each applicable jurisdiction. Click the above city/county link(s) to download the most current notice.

See also:

• Cautionary Tales Episode #24 – Mango Gardens’ Actions Not Fruitful; Unpaid Wages and Attempt to Evade Consequences Result in Seizure of Owners’ Assets (January, 2019)
• What’s New For 2019 – Industry Wage Orders Updated for California Minimum Wage Increases (March, 2019)
• What’s New For 2019 – California Minimum Wages Rates for 2019 (December, 2018)

For further assistance, please contact one of our attorneys Tim Bowles, Cindy Bamforth or Helena Kobrin.

Helena Kobrin

June 14, 2019

City or CountyMinimum Wage RateBerkeleyEmeryvilleLos Angeles CityLos Angeles County (Unincorporated Areas)MalibuMilpitasPasadena San Francisco City and CountySan LeandroSanta Monica

California May Require More Home Aide Disclosures Starting July 1, 2019

The Home Care Organization Consumer Protection Act (HCOCPA), effective January 1, 2016, requires licensing of home care organizations (HCOs) and registration of their home care aides (HCAs). The Home Care Services Bureau (HCSB) of California’s Department of Social Services (CDSS) regulates this industry. See Caregiver Agencies Must Comply with Home Care Services Consumer Protection Act or Cease Operation (January 2016).

The HCOCPA (Health & Safety Code section 1796.29) establishes an online registry containing an HCA’s name, identification number, registration status, and expiration date. The purpose is “to expedite the ability of a consumer to search and locate a registered home care aide or home care aide applicant,” enabling the public to learn if a caregiver had been background checked and trained and was affiliated with any particular HCO. Notably absent from disclosure was an HCA’s personal information.

However, last September AB 2455 amended section 1769.29. Still prohibiting the Internet display of such information, after July 1, 2019 and upon an HCA’s new registration or renewal, the law requires electronic disclosure of his/her name, phone and cell phone numbers on request of a labor organization for the specific purpose of “organizing, representation, and assistance activities.”

If an HCA does not want that information disclosed to a union, the person has to opt-out by a “simple procedure” developed by the CDSS. The agency is expected to revise its forms and procedures by July 1, 2019.

HCO best practices would thus include informing its HCAs that if they wish to maintain privacy vis-à-vis labor organizers, they must affirmatively opt-out when applying for or renewing their registration on or after July 1, 2019. Watch for the CDSS’s amended renewal and registration forms and make sure HCAs are using the correct ones.

See also:

• Home Care Aides Must Register With New State Agency No Later Than March 1, 2016 (January 2016)
• Caregiver Agencies Must File License and Caregiver Registration Applications by March 1, 2016 or Cease Operation (February 2016)

For further assistance, please contact one of our attorneys Tim Bowles, Cindy Bamforth or Helena Kobrin.

Helena Kobrin

May 24, 2019

California May Require More Home Aide Disclosures Starting July 1, 2019

General Contractor and Property Owners Left Holding Bag

Labor Code section 218.7, effective January 1, 2018, made general “direct” contractors (those delivering to property owners directly) responsible for wage payments to employees of subcontractors who fail to make those payments. However, direct contractors may be able to prevent such exposure through well-constructed written agreements with their subs. See, Contractors Liable for Wages and Benefits If Subcontractors Don’t Pay Their Employees.

A could-have-been-avoided case in point is the Labor Commissioner’s May 29, 2019 $68,657 assessment against general contractor J.H. McCormick, Inc. for wages the commissioner found subcontractor Universal Structural Building Corp failed to pay its workers. McCormick, apparently lacking the protective contractual measures that would have placed full burden back on Universal, appears in the unenviable position of having to pay that $68,657 presumably after having already covered that amount in the compensation paid the sub for its services.

The Labor Commissioner determined Universal’s violations – including additional substantial penalties section 218.7 did not extend to general/direct contractor McCormick – upon worker complaints that they had been paid nothing for five to six days labor a week, eight to 14 hours a day for the final weeks of the project. Universal reportedly told the workers it had no money and that McCormick, the general, was supposed to pay them.

California Labor Secretary Julie A. Su commented: “Up-the-chain general contractors are now responsible for wage theft committed by their subcontractors on all construction projects in the state. General contractors who choose subcontractors that do not pay wages owed will pay a hefty price. The Labor Commissioner’s Office will use all the tools at its disposal to return these stolen wages – including the placement of liens on these properties which will have a hold until the labor these workers poured into these projects is paid for in full.”

The commissioner’s powers can thus not only reach a general contractor’s accounts to pay an erring sub’s wage shortages, it can also sell off the property on which the project was performed. To prevent such a fiasco, best practices might include:

• General contractor agreements that confirm ultimate subcontractor responsibility for full wage and benefits payments to their workers;

• Contracts that require subcontractors to provide full wage payment documentation each pay period as a condition for the general’s payments to the sub for services rendered;

• Required indemnification, bonding and/or set-aside provisions to compensate the general/ direct contractor for its wage payments to a sub’s employees; and

• Consult with a knowledgeable legal counsel to help put such protections in place.

For more information, please contact one of our attorneys, Tim Bowles, Cindy Bamforth or Helena Kobrin.

Helena Kobrin

June 28, 2019

EEOC Settles Female Miner Discrimination and Retaliation Case For $690,000

The U.S. Equal Employment Opportunity Commission (EEOC) has announced the $690,000 resolution of its gender-based lawsuit against Alaska gold mining outfit Northern Star LLC, formerly Sumitomo Metal Mining Pogo (Pogo).

The government alleged Pogo discriminated against female underground miner Hanna Hurst by refusing to promote her despite promoting male co-workers with less seniority or training. In response to Hurst’s protestations, Pogo allegedly retaliated by imposing additional training requirements to rise through the ranks that did not apply to her male counterparts.

In a “consent decree” the company must post for the next three years, Pogo agreed to pay Hurst $690,000 in lost wages and damages and to hire an independent expert to develop and implement policies, procedures and training to ensure equal employment. In addition, Pogo will provide anti-discrimination training to all personnel, report to the EEOC all complaints based on discrimination and retaliation, and post a notice to employees about the consent decree and employees’ rights.

EEOC Senior Trial Attorney May Che commented, “During Hanna’s employment, Pogo had a discretionary promotion policy applied by male supervisors, who repeatedly showed overt hostility and sexist attitudes toward women at the mine, which ensured that no woman made it to the top-level mining positions.”

This case is another example of why employers should take all appropriate measures to ensure equal promotion opportunity to all qualified employees, including implementation of procedures to promptly investigate and resolve employee discrimination complaints of any kind, in consultation with experienced legal counsel as needed.

See also:

• The Best Offense Is a Good Defense (June, 2019).
• Dads are people too (September, 2018).
• Unlawful Retaliation Defined (September 2016)

For further assistance, please contact one of our attorneys Tim Bowles, Cindy Bamforth or Helena Kobrin.

Cindy Bamforth

June 27, 2019

Pregnancy Discrimination Is a Really Bad Idea

Pregnancy remains one of the most clearly protected classifications for employees, safeguarded not only under general disability laws, but also under laws enacted specifically to protect expectant women. See, for example, Pregnancy Accommodation in California (Nov 2018); Employers with 20 or More on Payroll Must Provide Expanded Parental Leave (December 2017); Expanded Pregnancy Health Benefits for Most California Employees (October 2011). Refusing to hire someone or otherwise taking adverse action because of pregnancy is an excellent way to trigger repercussions from government agencies as well as the person targeted.

The Equal Employment Opportunity Commission (EEOC) has just announced an $80,000 consent decree entered into with Scribe-X Northwest (Scribe-X) of Portland, Oregon over its refusal to hire a pregnant woman, Brittany Frisby. After the company hired Ms. Frisby to start work as a medical transcriber in January 2016, she mentioned that she was pregnant. The CEO then called her personally to tell her the job offer was rescinded and the company would not have hired her if it had known.

Not only does Scribe-X have to pay Ms. Frisby $80,000 for lost wages and emotional distress because of its Dark Ages mentality, it also must implement policies that will protect such employee rights, train its executives and staff, and report to EEOC on compliance.

John Stanley, EEOC Supervisory Trial Attorney, stated: “Ms. Frisby sought to earn a steady paycheck at a stable job to support a new child. By bringing her story to the EEOC, she tried to right a wrong, and this positive outcome allows her move on and ensures positive changes for current and future employees at Scribe-X.”

Company executives must have at least enough understanding of a decision’s potentials to know when it’s time to consult an experienced employment attorney beforehand. In this case, it likely would have taken only a vague notion of discrimination laws to sense that refusing to employ a woman because of pregnancy was a recipe for disaster.

For further assistance, please contact one of our attorneys Tim Bowles, Cindy Bamforth or Helena Kobrin.

Helena Kobrin

June 21, 2019