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:

• Have free, fresh, and “suitably cool” drinking water available onsite
• If temperatures top 80 degrees, provide access to shady rest areas
• Allow and encourage preventative cool-down to avoid overheating
• Take specified additional measures for high-heat (over 95 degrees), such as observing employees for signs of heat illness, having a buddy system, and ensuring 10-minute cool-down breaks every two hours
• Provide employee training to prevent heat illness

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:

• 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

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.

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,

• Dress to Impress (November, 2016).
• Wages Deductions (August, 2016).
• Ain’t No Such Thing as a “Free Call” (August, 2014)

Cindy Bamforth
August 6, 2019

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:

• Use gender-neutral job titles, such as foreperson and salesperson
• Ensure you are not restricting or preferring individuals on the basis of any “protected class”
• Include the phrase “An Equal Opportunity Employer” with the job listing
• When including images with your job posting, make sure they represent a diverse population

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.

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,

• Harassment Prevention Training Is Mandatory in California 2019 Deadline (February, 2019)
• What’s New for 2019 – California’s Increased Protections Against Workplace Harassment (February, 2019)
• What’s New for 2019 – California’s Increased Protections Against Harassment (January, 2019)
• What’s New in 2019 – #Metoo and The Workplace (December, 2018)
• Wake Up Call (August, 2018)
• Are You Doing Everything Possible to Prevent Workplace Sexual Harassment? (March, 2018)
• Speaking Out Against Sexual Harassment (December, 2017)
• Fair and Balanced – Harassment and Discrimination Workplace Investigations (April, 2011)

Law Offices of Timothy Bowles
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 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:

• California Legislature Dealing with Competing Proposals to Kill or Expand New Dynamex Test (April 2019)
• Radically New Dynamex Test Only Applies to Certain Employee Classification Cases (November 2018)
• Independent Contractor Status Now Falls Under Radically Different Rules (June 2018)

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. 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

Not having worker’s compensation insurance for five years was bad enough, but when the Labor Commissioner 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

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

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 managers and employees for a flat fee.

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

See also:

• 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 5, 2019