Click here to subscribe to our Bowles Law e-letter
Click here to subscribe to our Bowles Law e-letter
The federal government requires all U.S. employers to 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...
The federal government requires all U.S. employers to 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 of the Form 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 it available for inspection by authorized government officers.
The current I-9 Form and its 15-page “Instructions for Form I-9, Employment Eligibility Verification” (the Instructions) both expire on August 31, 2019.
Although the U.S. Citizenship and Immigration Services (USCIS) intends to make minor revisions to the Instructions to better assist employers, it does not anticipate making any changes to the I-9 Form itself.
Until the USCIS posts the updated I-9 Form (and the Instructions) with new expiration dates, employers should continue to use the existing version available on USCIS’s online I-9 resource center.
For further 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 information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
Cindy Bamforth
August 20, 2019
The U.S. Equal Employment Opportunity Commission (EEOC) enforces federal laws prohibiting employment discrimination and harassment based on sex, including sexual orientation.
The U.S. Equal Employment Opportunity Commission (EEOC) enforces federal laws prohibiting employment discrimination and harassment based on sex, including sexual orientation.
On August 9, 2019, the EEOC announced the $40,000 resolution of its harassment lawsuit against Virginia-based El Tio Tex- Mex Grill (El Tio).
The government alleged El Tio employees routinely sexually harassed a gay male server and his heterosexual co-worker with homophobic comments and taunts about their sexuality and friendship. Both claimed to have reported the harassment multiple times but that management ignored their complaints.
To settle the case, El Tio agreed to pay $40,000 to the two employees, implement effective policies and complaint procedures, and train all staff on the new policies and workplace harassment issues.
EEOC Regional Attorney Debra M. Lawrence commented, “The EEOC is committed to ensuring that no employee or applicant is discriminated against or harassed based on sexual orientation. We are gratified that El Tio worked with the EEOC to reach an amicable resolution of this lawsuit. The consent decree includes significant equitable relief that will benefit all company employees.”
This case is another example of why employers should properly and effectively respond to an employee’s sexual harassment complaints. In addition to sexual harassment prevention training and properly-worded anti-harassment policy, employers should ensure all workers are correctly educated on various forms of inappropriate harassment, discrimination and retaliation.
See also,
We provide live on-site anti-harassment training for all California employees for a flat fee. We also provide anti-harassment policies within our employee handbook.
For information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
Cindy Bamforth
August 15, 2019
Our firm is dedicated to community service because “human survival depends on a social framework that promotes and supports the basic rights and nature of mankind to create and change conditions for the better.” Bowles Law mission...
Our firm is dedicated to community service because “human survival depends on a social framework that promotes and supports the basic rights and nature of mankind to create and change conditions for the better.” Bowles Law mission statement, September, 2019.
That community is global. In West Africa, illiteracy fueled the hatred, fear, and bloodthirsty revenge that marked Liberia’s coup d’etat in 1979-80, its 14 years of genocidal civil war between 1989 – 2003 and the 11 years of similarly savage conflict in neighboring Sierra Leone (1991 – 2002). These were nations notorious for child soldiers, kids as young as 7 or 8 years old reduced to mindless killing machines as graphically portrayed in the motion picture Beasts of No Nation (2015).
From 2006, first as volunteer for Youth for Human Rights International and now pro bono for Applied Scholastics International (APS), Tim Bowles has teamed with inspired and courageous young West African leaders to create permanent solutions to the sources of such madness.
APS is an organization distinctively qualified to offer the solution to deficient learning through the proven effective learning methods of American author and innovator L. Ron Hubbard, widely known as “Study Technology ” or “Study Tech.”
APS’s African Literacy Project is addressing illiteracy as the most destructive human rights violation. From ignorance stems the violations of the rest of the United Nations Universal Declaration of Human Rights.
On behalf of APS and the Project, Tim has thus traveled to West Africa six times in recent years – and twice in 2019.
With continuing support of like-minded individuals and organizations, the Project aims to establish APS as significant partner in West Africa’s post-genocide recovery through national and regional literacy education teacher training centers.
The African Literacy Project’s GoFundMe link enables the donations that keep these wheels turning. Thank you!
Delbert International School
Wellington, Sierra Leone, West Africa
August 8, 2019
The Crew
Global Cares Mission Academy and orphanage
Monrovia, Liberia, West Africa
August 10, 2019
An employer’s obligations to protect outdoor workers from heat-related illnesses starts at 80 degrees Fahrenheit (that’s 26.7 degrees Celsius to be precise).
An employer’s obligations to protect outdoor workers from heat-related illnesses starts at 80 degrees Fahrenheit (that’s 26.7 degrees Celsius to be precise). So say California’s Occupational Safety & Health Standards Board (OSHSB) regulations.
The regulations incorporate common sense rules for keeping workers safe:
California’s Division on Occupational Safety and Health (Cal/OSHA) provides additional guidance, including information on what triggers heat illness, what to do about it, and creating a required written prevention plan.
A heat illness plan is one part of an employer’s Illness and Injury Prevention Plan (IIPP) and must be available at the worksite(s) to which it applies. If a business has a majority of workers who are non-English speakers, then it must translate its plan into the language(s) understood by the majority of the company’s workers.
Expect Cal/OSHA to engage in increased enforcement of these heat illness preventative measures during the summer. See, Cal/OSHA Increases Enforcement (June, 2011).
The OSHSB proposed a comparable set of regulations for indoor employees earlier this year, which has been going through revisions and is now in the rulemaking process.
Employers that have high-heat environments indoors or outdoors should be vigilant about protecting employees from heat illness whether specific rules exist or not and should regularly review IIPP measures to prevent heat-related illness.
See also:
For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
Helena Kobrin
August 9, 2019
A California appellate court recently addressed whether BJ’s Restaurants (BJ’s) improperly failed to reimburse its employees for the purchase of slip-resistant shoes.
A California appellate court recently addressed whether BJ’s Restaurants (BJ’s) improperly failed to reimburse its employees for the purchase of slip-resistant shoes.
Server Krista Townley sued on behalf of herself and other similarly-affected hourly co-workers alleging BJ’s Restaurants (BJ’s) required them to wear black, slip-resistant, close-toed shoes for safety reasons without supplying or reimbursing the footwear. Townley alleged BJ’s actions violated California Labor Code section 2802 requiring employers to reimburse workers for all necessary expenses incurred as part of the job.
BJ’s argued that although all hourly restaurant employees had to wear such footwear to avoid slip and fall accidents, the company did not instruct its workers to purchase a specific brand, style, or design of shoes, and did not prohibit wearing these shoes outside of work.
The California Court of Appeal sided with BJ’s, concluding that the cost of the slip-resistant shoes does not qualify as a “necessary expenditure” because they were basic, non-uniform wardrobe items.
Moral: employers should implement policies and practices to properly address all work-related expense reimbursements.
See also,
Cindy Bamforth
August 6, 2019
Advertising and recruiting of desired applicants are the first steps in the hiring process.
Advertising and recruiting of desired applicants are the first steps in the hiring process. Such outreach must not discriminate against members of any “protected class,” characteristics shielded by federal and state employment discrimination laws. In California, these include race, religious creed, color, national origin, ancestry, physical or mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, and military and veteran status.
Advertisements should thus not restrict, exclude or classify potential candidates based on any such protected class. For example, do not use language indicating a preferred age range under age 40, such as “young and energetic,” “youthful,” “recent college graduate,” “boy,” “girl,” or “must have grown up using technology from an early age.”
Also steer clear of terms such as “must be a U.S. citizen” (unless the job legally requires it for government clearance, etc.) or “the ideal candidate is a single person able to travel frequently.”
Best practices include:
Cindy Bamforth
August 2, 2019
Failing to properly conduct a timely harassment investigation can quickly lead an employer into hot water, as illustrated in a recent lawsuit brought by Napa County correctional officer Dante Michelucci.
Failing to properly conduct a timely harassment investigation can quickly lead an employer into hot water, as illustrated in a recent lawsuit brought by Napa County correctional officer Dante Michelucci.
Michelucci alleged he was sexually harassed throughout a 12-month period, creating a hostile work environment. He asserted two of his supervisors and one co-worker repeatedly referred to him as “bi-curious” and “gay,” made crude and derogatory comments to him, and displayed pictures in the workplace to suggest he was gay. Michelucci contended the harassment lead to his “post-traumatic stress disorder” diagnosis, which he reported to senior management.
Rather than promptly and impartially investigate Michelucci’s grievances as required by law, the managers allegedly told him to “stand up” for himself and that the harassment was a sign that his co-workers liked him.
After his supervisors and staff evidently continued their onslaught, such as littering his work locker with pictures of the gay pride parade, Michelucci “completely broke down,” sought urgent medical care, and was placed on a 90-day medical leave under the federal Family Medical Leave Act. FMLA permits eligible employees to receive protected unpaid time off due to the employee’s own serious health condition.
Only upon starting his FMLA leave did his employer finally launch an investigation into his complaints – nearly one year after he first made them. However, Michelucci asserted that Napa County used the investigation as a “sword” by demanding that he attend an in-person interview, and then accused him of failing to cooperate when he responded he was on leave, thereby forcing him to “involuntarily resign his employment.”
The case remains pending in the federal courts. Whatever the ultimate outcome, employers should proceed with care when responding to an employee’s harassment complaints, especially if the employee is also on a medical leave. Management should never browbeat such an employee into complying with inflexible or unrealistic investigative plans or, worse, threaten the employee for refusing to do so. Rather, employers should consult with experienced legal counsel for guidance to properly address the interplay of the above-referenced laws.
See also,
July 26, 2019
In Vazquez v. Jan-Pro Franchising International , the Ninth Circuit federal appeals court ruled California’s new “ABC” test for deciding independent contractor legitimacy was retroactive – i.e., it was to be applied to relationships before...
In Vazquez v. Jan-Pro Franchising International, the Ninth Circuit federal appeals court ruled California’s new “ABC” test for deciding independent contractor legitimacy was retroactive – i.e., it was to be applied to relationships before that test existed. See Making Dynamex Retroactive (May 2019)
The Ninth Circuit has now withdrawn that decision, referring the issue back to the California Supreme Court which had announced the three-prong ABC test April 30, 2018 in Dynamex Operations West, Inc. v. Superior Court.
The Ninth Circuit’s referral offers a glimmer of hope to the businesses and many who choose to work as independent contractors that the Dynamex ruling may not apply to their pre-Dynamex relationships.
Meanwhile, the California Assembly has passed Assembly Bill (AB)-5 codifying the ABC test if also passed by the state senate and signed by the governor. It exempts certain industries from Dynamex such as accountants, lawyers, engineers, financial advisers, healthcare workers, and real estate professionals. However, various other industries, such as gig economy workers and truck drivers, would remain subject to the new standard. For example, this could bar motor carriers from arrangements with owner-operators as independent contractors — a common relationship in the industry.
As currently written, AB-5 would make Dynamex retroactive, thus taking the ultimate decision on this issue out of the Supreme Court’s hands.
See also:
Helena Kobrin
July 25, 2019
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.
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:
For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
Helena Kobrin
July 19, 2019