Federal, state and local laws have long banned workplace racial discrimination. A recent trend seeks to expand such protections to various race-based traits, particularly certain hairstyles.

Under California’s now-pending Senate Bill (SB 188), workplace dress or grooming policies prohibiting natural hairstyles, including Afros, braids and twists would be unlawful race-based discrimination: “In a society in which hair has historically been one of many determining factors of a person’s race, and whether they were a second class citizen, hair today remains a proxy for race.”

The bill declares that “Eurocentric norms” have historically equated “blackness,” and the associated physical traits, for example, dark skin, kinky and curly hair to a badge of inferiority, sometimes subject to separate and unequal treatment. Thus, the bill reasons, “hair discrimination targeting hairstyles associated with race is racial discrimination.”

New York City has already enacted the first-ever legal enforcement guidance against discrimination on the basis of natural hair and hairstyles that disproportionately impact Black people.

Regardless of whether this initiative becomes actual law in California, employers should consider proactively modifying their dress code policy to eliminate any ban on natural hair or hair styles or requirements to straighten or relax naturally curly hair.

See also:

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

Cindy Bamforth
March 29, 2019

Mrs. Aimee Rosales has been promoted to the position of Office Manager. Her larger role comes after over two years of success as technical assistant for our attorneys.

Aimee has extensive executive and administrative experience in the humanitarian non-profit world.

We are very pleased to have her take the reins of the firm’s management and look forward to what we expect will be even greater ability to service clients and community.

Law Offices of Timothy Bowles
March 23, 2019

In 2016, the U.S. Department of Labor (DOL) issued a Final Rule raising the minimum salary amounts to qualify for executives, administrative, professional, outside sales and computer employees overtime exemption under the Fair Labor Standards Act (FLSA). It would have more than doubled the amount that employers had to pay their managers in order for them to be exempt from overtime. See Employers Must Comply No Later Than December 1, 2016 (May 26, 2016).

The Final Rule was to take effect on December 1, 2016. However, a federal judge blocked its implementation on November 22, 2016. See Judge Stops Overtime Rules Days Before December 1, 2016 Implementation. A pending appeal has been dormant while the DOL engaged in further rulemaking for an alternate proposal.

The DOL has recently announced a Notice of Proposed Rulemaking (NPRM) for its new proposed exempt employee pay rule. If approved, required pay amounts will increase from $455/week, $1,972/month, or $23,660/year to $679/week, $2,692/month, or $35,308/year, a roughly 49 percent increase. Employers would be permitted to fulfill 10 percent of the requirement through nondiscretionary bonuses and other incentive payments, such as commissions.

The proposal seeks to include periodic review for upward increases of the exempt pay threshold, but not automatic increases.

The federal job duties tests will not change for executives and administrators to qualify for overtime exemption.

As proposed, this federal NPRM should have little, if any impact on California’s standards for executive and administrative exemptions from overtime. In this state, the minimum salary to qualify for such exemption already exceed the above increased levels. In California, the qualifying salary minimums for a company employing 26 or more employees are currently $960/week; $4,160/month; and $49,920/year; for a business employing 25 or fewer employees, the qualifying minimums are currently $880/week; $3,813.33/month; and $45,760/year.

The public is requested to provide any comments, which will lead to amendments in the final version of the rule. The deadline for comments will be 60 days from when the Notice of Rulemaking is published in the Federal Register.

See also:

• California’s Exemptions from Overtime Pay (January 2012)
• The California Executive Exemption (November 2009)
• The California Administrative Exemption (November 2009)
• Administrators and Overtime Pay in California (December 2011)

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

Helena Kobrin

March 21, 2019

Ms. Loretta Gardea has joined the firm as our client services representative.

Loretta has an extensive background in customer relations as well as experience with sales, marketing and product development.

Loretta also speaks Spanish.

She has an A.A. in Liberal Arts from Bakersfield College, was a foreign language major and attended Nevada School of Real Estate.

We welcome Loretta to the firm and look forward to working with her!

March 14, 2019

Employers who require workers to call in to ascertain whether they are needed for a scheduled work shift will now need to rethink this practice.

California Industrial Welfare Commission (IWC) publishes “wage orders” containing regulations on wages, breaks, record-keeping and other working conditions, including so-called “reporting time pay.”

Employees must receive “reporting time pay” whenever they report to work as scheduled or at the employer’s request but are either not put to work or are given less than half of their scheduled or usual hours. In these instances, the employer must pay half the usual or scheduled day's work, but in no event for less than two hours nor more than four hours, at the employee’s regular rate of pay. For more information on calculating reporting time pay, please see California’s Division of Labor Standards Enforcement’s frequently asked questions.

It is undisputed that employees must receive reporting time pay whenever required to physically report to work only to be sent home. It has been less clear whether employees must also receive reporting time pay for calling in to find out if they have to work scheduled shifts and then being instructed not to come in to work that shift.
A recent California Court of Appeal decision held that such remote phone calls can trigger the reporting time requirement.

In Ward v. Tilly’s, Inc., plaintiff worked as a sales clerk. Tilly’s allegedly required all such clerks to contact their stores two hours before the start of any tentatively-scheduled shift to determine whether they were needed to work (referred to as “on-call” or “call-in” shifts). Tilly’s disciplined employees for failing to call in or for refusing to work these shifts when instructed to do so. The employees did not receive any compensation if after calling in they were instructed not to work the shift in question.

In her class action complaint, plaintiff Ward argued she and fellow employees should have received reporting time pay whenever they called in and were told not to come to work.

The appellate court agreed with the plaintiff, emphasizing that “‘report[ing] for work’ within the meaning of the wage order is best understood as presenting oneself as ordered” and concluding that the reporting time requirement is triggered whenever an employer directs employees to present themselves for work by:

1. physically appearing onsite at the shift’s start;
2. remotely logging on to a computer;
3. appearing directly at a client’s work site;
4. starting a trucking route; or
5. telephoning the employer a couple of hours prior to the shift’s start.

Although the plaintiff brought this case under Wage Order 7 (mercantile industry), the other wage orders have identical reporting time requirements. All California employers should thus consider the following best practices:

• Eliminate any such mandatory call-in practices/tentative work shifts if at all possible
• Have management call a list of employees to ask if they are willing and able to work certain shifts
• Do not discipline employees who choose not to return such calls or who refuse to come in
• Review and update all reporting time and unpaid on-call policies and practices to ensure compliance with the Ward v. Tilly’s decision
• Keep apprised of any new court decisions that further address these issues
• Consult with competent and experienced legal counsel as needed to address such issues

Cindy Bamforth
March 13, 2019

California law requires most employers who have had more than 10 employees on payroll during the last calendar year to keep illness and injury records for each worksite. Covered employers must also conspicuously post at each worksite an annual accident and injury summary for the prior calendar year from February 1 to April 30.

California’s Code of Regulations lists possible exemptions for qualified establishments in the retail, service, finance, insurance or real estate industries.

The California Occupational Safety and Health Administration (“Cal/OSHA”) website contains an overview of what is required, i.e., what forms to use, what injuries/illnesses and other information an employer must record, when employers should omit an employee’s name because of sensitive information or situation, and so on. The site also offers an interactive educational module, FAQs, and other helpful information from these pages.

The website also has the required forms for the annual recordkeeping (Cal/OSHA 300) and summary reports (Cal/OSHA 300A).

Regardless of whether a company is required to keep and post records of illnesses and injuries, it still is required to report to Cal/OSHA any deaths or serious injuries or illnesses.

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

See also:

• Cal/OSHA Injury and Illness Posting Requirement (March 3, 2016)

Helena Kobrin
March 8, 2019

Ms. Valerie Chavez is now our firm’s director of promotion and marketing.

Valerie comes to us with a background in service industry management, with experience and appreciation for client communications and security.

She has pursued study in justice administration at Pasadena City College and is looking to continue her education within the legal profession.

We welcome Valerie to the firm and look forward to working with her!

March 7, 2019

Geneva White has joined the firm as a technical administrative assistant.

Geneva comes to us with a background in public relations with former positions in commercial marketing design as well as full-time humanitarian non-profit work.

She has studied at New York’s The New School for Social Research and Parsons School for Design. Geneva is also a graduate of the Delphian School in Oregon, a leading competency-based institution Tim helped establish at the beginning of his career.

We welcome Geneva and look forward to working with her!

March 3, 2019

California employers must comply with one or more of the 18 California Industrial Welfare Commission’s (IWC) published “wage orders” applicable to their industry or profession. For example, Wage Order 1 applies to the manufacturing industry; Wage Order 4 to professional, technical, clerical, mechanical and similar occupations; Wage Order 9 to the transportation industry; and Wage Order 16 to construction, drilling, logging and mining occupations.

The wage orders contain regulations on minimum and overtime wages, meal and rest periods, record-keeping requirements, exemptions from overtime, and other working conditions.

The California Department of Industrial Relations has updated Wage Orders 1 through 16 to include 2019’s increased state minimum wage and meal and lodging rates. Wage Order 17 (miscellaneous employees) has not been changed.

After determining which wage order(s) apply to a business and its employees, employers must post the most recent version(s) at the workplace or on the job site along with the California Minimum Wage Order where employees can read them easily.

See also,

• What’s New for 2019 – California Minimum Wage Rates for 2019 (December, 2018).
• California’s Gradual Increases in Minimum Wage, to Reach $15.00 Per Hour by January 1, 2022 (April, 2016).

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

Cindy Bamforth
February 28, 2019