Once again, Cal/OSHA has cited an employer for the death of an employee resulting from ignored safety measures.

In March 2018, a GreenWaste Recovery, Inc. garbage collection worker was driving on the right side of a waste collection truck in San Jose. While making a turn, he fell out of the truck, which then ran him over. Cal/OSHA determined that the necessary safety chain was inoperable because of a missing part.

Cal/OSHA Chief Juliann Sum reminds employers: “To prevent serious and fatal injuries, employers must maintain occupant restraints in working order and ensure the restraints are used by workers.” Specifically related to the trash collection industry, “Collection vehicles with the option to operate the truck from the right-hand side must be equipped with an occupant restraint system such as a door, locking or latching bar, safety chain or strap.”

The agency ruled the employee’s death an avoidable tragedy. GreenWaste Recovery has to pay $46,270 in citations for its safety laxity and will likely face a wrongful death claim. The Cal/OSHA imposed citations include two serious accident-related citations for not ensuring working safety equipment and failing to identify workers’ unsafe practice of not using restraints, and two general ones for failure to maintain required safety equipment.

Cal/OSHA has done at least 186 inspections of waste hauling companies in the last three years, and sadly, they include the death of another trash collection worker killed when he was pinned by his truck against a wall in La Jolla in 2017.

The concern for human life and avoidance of injuries should of course compel companies to do everything necessary to keep their workers safe. Avoiding costly citations is another incentive to do so. Having a proper Illness and Injury Prevention Program, doing necessary training, and ensuring that equipment is working and employees are using it are key measures to have in place.

See also:

• Workplace Illness and Injury Prevention Programs are Mandatory in California (July, 2018)

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

Helena Kobrin
October 4, 2018

Human resources professionals have limited time and attention to review job resumes. According to an August 24, 2018 nationwide CareerBuilder survey of more than 1,100 industry-wide hiring managers and HR professionals, the majority spend less than a minute looking over the typical offering.

According to the survey, job-seekers thus eager to stand out from the crowd have ill-advisedly submitted resumes:

• With every sentence typed in a different font type;
• Comprised of a single sentence;
• Claiming to have had the same number of marriages as prior jobs;
• Listing 40 different jobs in one year;
• Consisting of a credit application; and
• Asserting the same employment dates for every job listed

The surveyed professionals identified three common resume errors/deal breakers: (i) spelling mistakes or bad grammar (77 percent); (ii) inappropriate email address (35 percent); and (iii) no mention of quantifiable results (34 percent).

All joking aside, hiring managers must avoid making mistakes during the job application process such as:

• Photographing the job applicant;
• Requesting a social security number by mail;
• Obtaining information concerning sex, gender, gender identity or gender expression;
• Asking for salary or criminal history; or
• Requesting social media account access (i.e. username or password).

See also:

• California’s Ban Clarified on Applicant Salary History (August, 2018)
• Private or Social? (August, 2018)
• California Adopts Ban the Box Law (October, 2017)
• Asking for Job Applicants Age is a NO-NO (August,2017)

Cindy Bamforth
October 3, 2018

The federal Americans with Disabilities Act (ADA) and California’s Fair Employment and Housing Act (FEHA) prohibit discrimination against persons with disabilities. An employer may not refuse to hire an otherwise qualified person because of a disability unless it is an insurmountable impediment to performing the job in question.

On September 24, 2018 the Equal Employment Opportunity Commission (EEOC) announced that it has filed disability discrimination claims against nationwide superstore Target for alleged failure to hire a hearing impaired person in its Antioch, California store.

John Hayes applied for an entry-level clerk position in September 2014. Finding his qualifications sufficient on paper but unaware of any hearing problem, Target representatives called Mr. Hayes twice.

Target policy is to leave a message for prospective applicants whom they do not reach. The EEOC asserts that upon reaching a Video Relay Service (VRS) that enabled Mr. Hayes to communicate with callers, the Target representatives left no message for him either time. The EEOC further contends that even though company HR told him when he called that Target would contact him for an interview, this never happened. The government alleges that Target did hire seven non-disabled persons to fill clerk positions shortly afterwards.

The EEOC is suing Target for front pay, lost wages, and other damages. The agency also seeks an injunction for Target not to engage in such purported discrimination in the future.

EEOC Regional Attorney Roberta Steele stated, “Target had already determined that Mr. Hayes was qualified and available to start a new job when it learned from a VRS operator he was deaf. Target’s deviation from its standard operating procedures is strong evidence of discrimination.”

The EEOC San Francisco Office director noted that, “Mr. Hayes had a successful 17-year career with a major medical provider before he retired. He was stunned to discover that Target wouldn’t even interview him for an entry-level clerk position after learning he was deaf. Congress enacted the ADA to prevent just this sort of thing -- employers refusing to consider qualified individuals because of their disability.”

Through engagement in an interactive process, employers must seek to reasonably accommodate disabilities unless doing so would cause undue hardship. For example, an employer may be able to accommodate a person with back problems by providing a better chair or permitting more frequent breaks, but is not expected to accommodate a blind person to drive a truck. An employment attorney can guide an employer through an interactive process that complies with the law.

See also:

• Don’t Flunk the Reasonable Accommodation Test (May, 2018)
• Job Interview Errors to Avoid (April, 2018)
• Preventing Workplace Discrimination (August, 2017)
• Employers Duties to Reasonably Accommodate Worker Disabilities (May, 2015)

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

Helena Kobrin
September 28, 2018

In today’s tight labor market, employers may be tempted to offer unpaid internships to high school or college students. Before doing so, employers should carefully evaluate whether such interns legitimately qualify as unpaid.

The U.S. Department of Labor (DOL) and the California Division of Labor Standards Enforcement (DLSE) have traditionally used a long-standing six-part test to determine if the internship should be paid or unpaid.

Recently, however, the DOL and federal courts replaced that test with a seven-factor test to determine which party is the “primary beneficiary” of the relationship. If the employer is deemed the “primary beneficiary,” the internship must be paid.

Although the DSLE continues to refer to the six-part test, there is at least one federal case indicating that California will follow DOL’s new criteria.

These seven factors examine the internship’s “economic reality” to determine which party is the primary beneficiary:

1. Does the intern clearly understand there is no expectation of compensation?
2. Does the internship provide training similar to that provided in an educational environment, including clinical training?
3. Is the internship tied to the intern’s formal education program via integrated coursework or academic credit?
4. To what extent does the internship accommodate the intern’s academic commitments by adhering to the academic calendar?
5. Does the internship provide the intern with beneficial learning?
6. To what extent does the intern’s work complement, rather than displace, paid employees’ work while also allowing the intern to obtain significant education benefits?
7. Do the parties understand the intern is not entitled to a paid job at the end of the internship?

The above “primary beneficiary” test is flexible, meaning no one factor determines the outcome. Thus, each situation must be viewed on a case-by-case basis. If the specific circumstances indicate the intern fits the definition of an employee, then he or she must receive at least minimum wage and any overtime, as well as other employee benefits and rights.

Whether interns are paid or unpaid, California employers must protect them against unlawful harassment and discrimination and provide religious belief and religious accommodation rights. It’s also good idea to add all interns to the employer’s workers’ compensation coverage and, if not, to confirm other insurance coverage for injuries that occur on premises or while engaged in internship tasks/projects.

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

Cindy Bamforth
September 26, 2018

Employers are already tightly regulated on obtaining an applicant’s or employee’s credit information. Companies may only seek consumer credit reporting agency disclosure on credit-worthiness, credit standing or credit capacity in connection with:

• specified job positions including managerial executives
• jobs involving regular access to financial records, and
• positions for which credit background checks are required by law

Whenever running such credit checks, the employer or its agent must strictly comply with applicable federal and state laws, including the federal Fair Credit Reporting Act (FCRA).

For example, the applicant or employee must receive a copy of the FCRA’s “Summary of Your Rights” form at various points in the credit check process, including when disclosing the intent to run the report, prior to taking adverse action based on the results of the report, and after taking adverse action upon the individual’s timely request.

This “Summary of Your Rights” form describes the individual’s prerogatives to obtain and dispute information in consumer reports as well as how to obtain credit scores.

On September 12, 2018, the Federal Bureau of Consumer Financial Protection (Bureau) issued an interim final rule updating the “Summary of Your Rights” form to comport with recent legislative changes to the FCRA which require all nationwide consumer reporting agencies to provide security freezes (locking down release of all credit information without express authorization) for no charge to consumers to deter identity thieves from fraudulently opening accounts in the consumer’s name.

The recent legislation also mandates that effective September 21, 2018, individuals undergoing credit background checks must receive notice of the new security freeze right with receipt of the “Summary of Your Rights” form. For sake of convenience, the Bureau updated its “Summary of Your Rights” form to include the new notification language. The new form is located in Appendix K of the interim final rule.

Employers who conduct background checks should ensure they or their background check companies comply with the interim final rule no later than the September 21, 2018 deadline.
See also:

• Pre-Employment Background Checks (August, 2011)
• Background Check for Employment (June, 2010)

Cindy Bamforth
September 20, 2018

The U.S. Equal Employment Opportunity Commission (EEOC) has announced the $1.1 million resolution of its class action lawsuit against world-leading cosmetic company Estée Lauder.

The government alleged Estée Lauder discriminated against a class of 210 new fathers under its paid parental leave policy. Although no federal or state law requires an employer to pay for such leave, Estée Lauder provided paid parental leave as an employee benefit. That policy, however, did not provide fathers with any return to work benefits and only provided them with two weeks of paid leave as compared to the six weeks that new mothers received. The parental leave at issue was separate from childbirth-related medical leave.

In the consent decree, Estée Lauder also agreed to revise and implement a new parental leave policy providing covered employees, regardless of gender or caregiver status, up to 20 weeks of paid leave and six weeks of flexible work schedule upon returning to work. The company must also train human resources and management personnel on federal anti-bias laws and on the details of its revised parental leave policy.

EEOC acting director Mindy E. Weinstein commented, “This settlement ensures that Estée Lauder will provide equal opportunities for time off to new dads and new moms, which is what the law requires, and what makes sense for families.” Philadelphia District Office attorney Thomas Rethage added, “Parental leave policies should not reflect presumptions or stereotypes about gender roles.”

This case is an expensive example of why employers should take all appropriate measures to ensure equal leave benefits to all employees, and implement and follow procedures to promptly investigate and resolve employee complaints of discrimination of any kind, in consultation with experienced legal counsel as needed.

See also:

• California “New Parental Leave Act” Impacts Small Business (December, 2017).
• Gender Designations in the Workplace (April, 2018)

Cindy Bamforth
September 13, 2018

It would seem unnecessary to have a written policy requiring workers to show up in order to keep their jobs and be paid. Yet employers often experience problems with no shows and tardiness, so it’s best to issue clear written directives mandating attendance, laying out work hours and days, and the procedure for employees to notify the business when circumstances render it impossible to keep the schedule.

The policy should provide examples of reasonable, legitimate circumstances for absences, including illness or family emergency, and can include examples of what is not, such as an urge to go to the beach. Some companies also specify bonuses for wellness, i.e, consistent attendance and productivity, although they should not encourage people who are ill to come to work if it will jeopardize their own health or that of others.

Some suggested elements in such a policy are:

Employee work hours – Define a work day, including the times for starting, taking meals, and ending work. Provide the schedules for each shift if the company has more than one. Also inform workers of their rights to take paid rest breaks and unpaid meal breaks;

Define lateness – Be clear about what the company considers lateness (including any few excused minutes) and whom to notify, as well as any procedure for doing so if one is going to be late;

Lay out leaves applicable to the business, for example:

• Family Medical Leave Act (FMLA) (federal), California Family Rights Act (CFRA – If the business has 50 or more employees, it must comply with these laws and should have written policy covering qualifications for such leaves and the applicable procedures;

• Pregnancy Leave – A California business with five or more employees must provide unpaid leave benefits for pregnant women and new moms. Written policy should describe the requirements and procedures compatible with the law;

• New Parent Leave Act – Effective 2018, a business with 20 or more employees must provide leave under the New Parent Leave Act and should include information on that leave and qualifications for it in written policy;

• Leave of absence – A company that chooses to provide unpaid leaves of absence on other grounds should include policy on the criteria and rules for such leaves;

Discipline and consequences – The policy should also specify the company’s right to determine consequences for attendance policy violations. The standard should leave room for discretion based on the facts, i.e., a business should not specify unvarying discipline for an infraction because circumstances of each situation are different. Of course, an employer’s disciplinary actions may not ever discriminate on the basis of gender, race, national origin, older age, and the myriad of other protected classifications.

“At-will” status permits either the employer or the employee to freely end the relationship even with no advance notice and for no reason at all. Therefore, a business can legitimately terminate an “at-will” worker who fails to arrive or is late.

While there can be exceptions to anything, management should generally not make such a significant move on a single instance or a few isolated occurrences. Termination is rarely the first solution since a company has usually gone through some expense and time to train an individual worker. The majority of absent or tardy employees are willing and able to improve their reliability by a discussion alone.

Companies should employ a system for documenting in writing employee lateness and absences and any discipline it metes out for such infractions.

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

Helena Kobrin
September 12, 2018

Employers who require workers to perform short tasks before or after clocking out for their shift will now need to rethink this practice, even if it takes only an extra minute or so per day to boot up or turn off a computer and lock the door on the way out.

Under certain circumstances, federal and state courts have occasionally permitted employers to disregard miniscule amounts of time employees spend working off the clock on tasks that cannot be recorded properly because they are too short, uncertain or indefinite (the de minimis rule).

In class action Troester v. Starbucks Corporation, the plaintiff, a minimum wage hourly shift supervisor, alleged that he worked off the clock at the end of nearly every shift performing administrative tasks such as uploading a daily computerized report, closing the store, setting the alarm and walking co-workers to their cars. Plaintiff claimed that during the 17 months of his Starbucks employment he worked a total of nearly 13 hours of such de minimis time for approximately $103.00 in unpaid wages.

The California Supreme Court decided the de minimis rule did not apply and that Starbucks thus failed to pay all wages due as: (i) the employer required plaintiff to routinely work anywhere from four to 10 extra minutes per shift after clocking out; (ii) such time was predictable and trackable, especially with today’s modern technology; and (iii) the number of minutes added up to an amount that was not trivial to the average worker.

The final result may be far from trivial. As a class action on behalf of all non-managerial employees who performed store closing tasks for Starbucks operations in California from mid-2009 to October 2010, the company potentially faces significant damages in underpaid compensation.

The Court concluded that California law does “not allow employers to require employees to routinely work for minutes off-the-clock without compensation. We leave open whether there are wage claims involving employee activities that are so irregular or brief in duration that it would not be reasonable to require employers to compensate employees for the time spent on them.”

Based on this case, employers should make use of available state-of-the-art time-tracking technology to precisely track and pay for every minute of work performed. Wherever possible, employers should also restructure any routine tasks to avoid any work occurring before or after clocking out.

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

Cindy Bamforth
September 7, 2018

The Labor Enforcement Task Force (LETF), a coalition of California agencies directed by the Department of Industrial Relations (DIR), has been targeting the “underground economy” for violation of employment laws since 2012. Members include the Labor Commissioner’s Department (Division of Labor Standards Enforcement), Cal/OSHA, Employment Development Department, Department of Insurance, Contractors State License Board, Bureau of Automotive Repair, Department of Alcoholic Beverage Control, and Department of Tax and Fee Administration.

In a recent newsletter, the DIR announced that, in 2017-2018, 93% of businesses that the LETF inspected had violations of labor laws under at least one of the agencies involved.

In just the first quarter of 2018, the LETF imposed $10 million in penalties for wage theft, lack of workers’ compensation insurance, lack of required licenses, and safety violations. In addition, a finding of no workers compensation insurance resulted in the Labor Commissioner issuing stop orders to 275 employers, and Cal/OSHA required 26 employers to stop using equipment or engaging in a particular operation found to cause “immediate danger of serious injury or fatality.”

The LETF targets industries that are well known for frequent violations of employment laws, including manufacturing, automotive repair, restaurant, agriculture, garment, and construction. These particular frequent violator industries are named in the newsletter, but other industries may also be included.

All enterprises are of course required to comply with applicable employment laws and should consult with an attorney to find out if their business model is legally compliant. They should fix any issues that currently are not. If a business is in a targeted industry, it is even more crucial to do so without delay, as it could be a sitting duck at the hands of the LETF or other agencies.

See also:

• Cautionary Tales Episode 16: Spa Nailed for $1.2 Million, “Wage Theft” (August, 2018)
• Cautionary Tales Episode 15: Drywall Company Plastered With Nearly $2 Million in Citations (August, 2018)
• Cautionary Tales Episode 10: $10 Million in Citations Against Seven Restaurants For Wage Violations (June, 2018)

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

Helena Kobrin
September 6, 2018