California law prohibits employer access to the personal social media accounts of its employees. “Social media” is defined as “an electronic service or account, or electronic content, including, but not limited to, videos, still photographs, blogs, video blogs, podcasts, instant and text messages, email, online services or accounts, or Internet Web site profiles or locations.”

Intended to protect privacy, the law prohibits a California employer from requiring employees or job applicants to:

• Disclose a username or password for the purpose of accessing personal social media;
• Access personal social media in the presence of the employer; or
• With the exceptions below, to divulge any personal social media.

Employers are permitted to request personal social media information as part of an investigation into alleged employee misconduct or illegal activity if there is reason to believe relevant information exists in that social media. In such a case, the employer may only use the social media information for purposes of the investigation.

Employers may require employees to disclose usernames, passwords or other access information for employer-issued electronic devices, such as computers, phones, or tablets.

Companies that issue such devices to employees should consider publishing written policies on expected etiquette and on management’s ability to access and monitor such devices. Employees should understand that their privacy rights do not extend to the content of emails or texts exchanged via company equipment.

The policy should include:

• Employee Privacy – There is no reasonable expectation of privacy for the information stored on computers or other devices owned by the company. Further, management has the right to review any such information at any time;
• Ownership of Information – Any information stored or transmitted on a company-owned electronic device is property of the company;
• Acceptable Usage – Employees may only use e-mail or texting on company devices for company business. Communications should be professional and respectful and not degrading, insulting or bullying; and
• Company Social Media – The Company owns, operates and manages its social media accounts. Users are to set up the accounts with company email, etc., and are required to provide the password/log-in information to management.

California businesses should closely review their workplace personnel management practices and social media policies to ensure they are consistent with the above rules and provide clarity on employee privacy rights for company-issued devices.

• If It Isn’t Written, Workplace Policy is Anyone’s Guess (March, 2018)
• Defining Employee Privacy (April, 2011)
• Expecting Privacy at Work? Fugeddaboutit! (January, 2011)

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

Helena Kobrin
August 30, 2018

A well-written dress code and personal appearances policy clearly instructs employees on what type of business attire the company finds appropriate. Depending on the nature of the business enterprise or industry, employers may require employees to wear formal business attire every day. Some implement a more casual dress code on Fridays only, and others may allow business casual at all times.

In addition to deciding on the above guidelines, employers should consider these points when drafting a dress code policy:

• Require all employees to dress in a neat and well-presented manner.
• Instruct employees to report to work well-groomed, clean and dressed according to the requirements of the job position.
• Include language on workplace safety equipment/clothing such as closed toe shoes for warehouse workers.
• Prohibit excessive use of perfumes, colognes and other fragrances when working in close proximity with others.
• Decide whether to issue a separate, more relaxed summer dress code policy.
• Include a statement affirming the employer’s willingness to reasonably accommodate an employee’s sincerely-held religious beliefs, observances or practices regarding workplace attire or grooming unless such accommodation creates undue hardship or a safety issue.
• Adhere to applicable transgender and gender-identity laws by allowing employees to appear or dress in a manner consistent with the employee’s gender identity or gender expression.
• Provide gender-neutral examples of appropriate versus inappropriate attire.
• Consider requiring inappropriately-dressed employees to return home to change without pay, to the extent permitted by applicable law.

The employer should also train managers how to properly enforce the policy without making an employee uncomfortable, such as when discussing whether a female employee’s low-cut top is too revealing.

See also:

• When Image is the Thing (August, 2018).
• Gender Designations in the Workplace (April, 2018)
• Accommodating Religious Practices (June, 2015)
• Employers Duties to Fight Religious Prejudice (May, 2014)

Cindy Bamforth
August 29, 2018

Under California Labor Code section 452, employers may require workers to wear uniforms of a specified color, quality, texture, style and form so long as the employer provides and maintains them. See, Dress to Impress (July, 2011).

Unless the clothing is commonly worn within a particular occupation and can be worn from one job to another within a specific industry (for example, a nurse’s white uniform or a food server’s black-and-white uniform), the employer is responsible for providing the uniform even if it is comprised of clothing or accessories that can be worn off the job, such as a tropical shirt and khaki pants.

A required uniform or company’s dress standards may not be discriminatory in any way. For example, Abercrombie & Fitch (A&F) lost a lawsuit for religious discrimination over its unwillingness to accommodate, and consequent refusal to hire, a Muslim woman who wore a head scarf that violated its uniform policy for employees. See, Accommodating Religious Practices (June 2015) and Workplace Discrimination.

Employers may instruct employees to maintain their issued uniforms which require minimal time for their care, such as only machine washing and drying. If a uniform requires more complex care – for example, ironing, dry cleaning, special laundering or repairs – the employer must provide either maintenance or a maintenance allowance for the care.

California law allows employers to require deposits as security for return of uniforms, but there are strict rules and it is not generally advisable. See, Industrial Welfare Commission Orders (IWC Orders), Section 9. An employer may never take pay deductions for normal wear and tear. See, Wage Deductions (August 2016). Under the IWC Orders, an employer may deduct from the last pay check for a uniform that is not returned – one of the few permitted final pay deductions.

If an employer requires workplace uniforms, it should have a good workplace policy addressing all aspects of issuing, maintaining, and returning uniforms upon termination of employment.

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

Helena Kobrin
August 22, 2018

Intended to eliminate traditional disparities in pay levels for the same or similar work, new California Labor Code section 432.3 prohibits employers from seeking an applicant’s salary history. See, What’s New 2018 – Salary History (December 2017). On the other hand, such employers must disclose a job position’s “pay scale” upon the applicant’s “reasonable request.”

To resolve certain ambiguities in this statute, the state has enacted so-called clean-up legislation (the Amendments), effective January 1, 2019. This includes several new definitions:

• Pay scale “means a salary or hourly wage range” for the job position.

• Reasonable request for the pay scale “means a request made after an applicant has completed an initial interview with the employer.”

• Applicant “means an individual who is seeking employment with the employer and is not currently employed with that employer in any capacity or position.”

The Amendments also clarify that employers may ask an applicant about his or her salary expectations for the position being applied for.

In addition, the Amendments confirm that although an applicant’s salary history shall never justify any pay disparity, the rules are slightly different regarding current employees. Employers may base compensation decisions on their current employees’ existing salary, so long as the employer can justify any pay disparity of employees of a different gender, race or ethnicity who perform substantially similar work. Valid wage differentials are limited to a seniority system; a merit system; a system that measures earnings by quantity or quality of production; and/or a bona fide factor such as education, training or experience. See, Labor Code section 1197.5, California Fair Pay Act.

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

Cindy Bamforth
August 21, 2018

Hiring workers for shortened hours or for fewer days weekly does not absolve an employer from complying with the full range of workplace legal requirements. In fact, greater attention may be required with part-time employees to avoid the wage and hour pitfalls.

Paid Rest Breaks. Under this state’s Industrial Wage Commission (IWC) Wage Orders, California business generally must provide a paid ten-minute rest period for “each four hours worked (or major fraction thereof),” in which the employee is relieved of all duties. There is a special rule for someone who only works three hours or less in a day. Thus, for example:

• Up to three hours daily labor: no break required
• Over three hours and up to six hours daily labor: one break required (four hours plus half or less of a second four hours)
• Over six hours and up to ten hours daily labor: two breaks required (between four hours and over one-half of another four and two four hour periods and half or less of a third four hours).

Unpaid Meal Periods. Employers may not employ an not-exempt-from overtime worker for a work period of more than five (5) hours a day without providing the person an off-duty meal period of not less than 30 minutes commencing before the end of the fifth hour. However, if the employee works no more than six (6) hours in a day, the employee may by written agreement waive that meal period. See, IWC Wage Orders and Labor Code 512.

For example, if an employee begins work at 9:00 a.m. and works a six-hour day, the employee must start a single meal break before 2:00 p.m. when the fifth hour of work ends, unless the employee signs a meal break waiver.

Paid Sick Leave. Most California employers regardless of size must provide a minimum of 24-hours of paid sick leave per year to any temporary, part-time or full-time employee who has worked in the state for 30 days. Whether part-time or full-time, an employee is entitled to use paid sick days beginning on the 90th day of employment.

Companies generally have the choice of adopting a plan that accrues such paid leave at a rate of at least one hour for every 30 hours worked or one that allocates all paid hours up-front annually. Thus, a company with an accrual plan will have see its full-time workers reach maximum benefit rights sooner than its part-timers. (Employers with so-called “paid time off” (PTO) policies may have special rules that apply.) See, Mandatory Paid Sick Leave for California Employees (September, 2014).

Businesses must follow the higher standards for paid sick leave standards imposed by particular cities or counties, even if employees work within their boundaries for only a few hours a week. See, for example, Requiring Employers to Pay for Sick Days; a National Trend (August, 2017); San Diego Paid Sick Leave Requirements, Effective July 11 and September 2, 2016 (August 2016); City of Los Angeles New Paid Sick Leave Requirements (June 2016); and Oakland Paid Sick Leave Law Provides Greater Benefits Than the Upcoming State Requirements (March 2015).

Other Requirements, including Workers’ Compensation: Among other things, employers must also provide workers’ compensation insurance coverage for part-time workers as well as make pay for daily overtime hours (over eight), provide the standard pay deductions, and include compliant wage statements with paychecks.

See also:

• Required Meal Periods and Rest Breaks Revisited (April, 2018)

• Employee Meal Periods and Rest Breaks (September, 2016)

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

Helena Kobrin
August 17, 2018

California employers must conspicuously display required labor posters or notices where all employees may view them in each company location. The posters cover a broad array of topics including minimum wage requirements, safety and health requirements, workers’ compensation information, and whistleblowing protection.

California employers must also distribute certain government-issued pamphlets or information sheets to new hires, to employees on certain types of leaves of absence, and again upon termination of employment, covering topics including state disability insurance, workers’ compensation rights and benefits, and paid family leave.

California’s Employment Development Department (EDD), responsible for the administration of state unemployment insurance, disability insurance, payroll tax collection, and job training/workforce services, has recently updated its mandatory poster and pamphlet.

The “Notice to Employees” poster (DE 1857A), describing how to apply for unemployment insurance, disability insurance, and paid family leave benefits, now contains updated EDD contact information and filing instructions.

The “For Your Benefit - California’s Programs for the Unemployed” pamphlet (DE 2320) outlines eligibility criteria and provides detailed descriptions of a worker’s rights to unemployment insurance benefits as well as information on disability insurance, paid family leave, and workforce job-seeking services. Employers must provide a copy to each California employee when laid off, terminated, or taking a leave of absence. The EDD has recently transitioned into a more streamlined application system accessible through a single login site. Accordingly, the updated pamphlet provides new contact/application information.

Although the EDD encourages covered employers to use these new versions right away, employers may continue using the previous versions until January 1, 2019.

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

Cindy Bamforth
August 15, 2018

Some employers require workers to remain “on-call” or on “standby” outside scheduled hours, either at the worksite or off the premises. Depending on the circumstances, a company may be required to pay an hourly employee for on-call time, including all resultant overtime at the correct overtime rate. See The Basics of Overtime; Calculating Overtime with Employee Bonuses in California.

California and federal law standards include:

• On-Premises Standby – The California Supreme Court has ruled that an employee required to remain on a business’s premises after-hours to protect against crime or potential emergencies must be paid for all such time under Wage Hour 4, even if some of those hours are idle or spent sleeping. Mendiola v. CPS Security Solutions, Inc. The rules related to payment of on-call workers vary in different Wage Orders, so it is important to check the applicable Wage Order for any special rules applicable to a particular industry or type of worker. For example, for employees who are required to reside on the premises under Wage Order 5, Public Housekeeping Industry, only “time spent carrying out assigned duties shall be counted as hours worked.”

• Uncontrolled Standby – An on-call employee required to respond to an employer’s request to return to work during an otherwise off-duty time, but not restricted in any manner or having only minor restrictions as to off-work activities, response time, or location does not need to be paid as he or she is not considered under the control of the employer for those wide-open standby hours.

• Controlled Standby – On the other hand, if an employee's activities or location are sufficiently restricted during the off-hours, the employer is considered to have control of the employee and, therefore, must pay for the waiting time. Such “controlled standby” restrictions include: (1) geographical restrictions on employee's movements; (2) required response time; (3) required readiness standards (such as no alcoholic consumption); (4) the extent the employer's policy would otherwise impact on personal activities during the on-call time (for example, no travel to a zone where there is no cell phone coverage); (5) unlimited number of times employer may contact the employee; and (6) cannot easily trade his/her on-call responsibilities with another employee.

The line between uncontrolled and controlled standby is not always clear, moving in either direction on the relative degree of “uncontrol” and control factors present.

For instance, a policy that provides employees an option of responding to a call probably does not require the company to pay the employees for choosing to be available. Thus, a business that puts out the word of a hot prospect to several salespeople, with the referral going to the first employee to call in, is most likely an uncontrolled and thus uncompensated standby/on-call situation.

On the other hand, a policy that requires a designated worker to stay within specific geographic limits, to maintain open telephone or text message contact during specific hours and to arrive at the worksite (or otherwise begin working) within a limited amount of time after receiving employer’s instruction to appear is almost certainly a paid controlled standby or on-call arrangement.

Whatever the standby arrangement, once an employer engages a worker for labors during his or her off-hours, the time is compensable. Thus, a business must pay an hourly employee for all time spent responding to an off-hours question or emergency via phone, text, email, or other communication channel.

It is thus important to have clear written policy for on-call requirements, one way or the other.

An employer who doesn’t pay for standby, but vaguely announces “negative consequences” for failing to respond to a call, risks a later government or court finding that it has failed to pay for required standby time.

On the other hand, a business with a clear, paid, mandatory on-call policy can legitimately take adverse action against the individual who fails to comply. Certainly, the policy should spell out the range of consequences possible. On the degree of discipline to be consistently applied for a particular violation, there is no substitute for management experience and judgment and, as needed, appropriate legal advice.

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

Helena Kobrin
August 10, 2018

The U.S. Equal Employment Opportunity Commission (EEOC) has announced court approval of a $3.5 million payment to resolve a sexual harassment lawsuit against Irvine, California employer Alorica, Inc., a call center and technology services business. The government alleged the company had condoned repeated, long-term sexual harassment of both male and female customer service employees despite repeated worker complaints.

In settlement, Alorica also agreed to hire a third-party monitor, to create two internal positions (an equal employment opportunity consultant and an internal compliance officer), and to provide sexual harassment training incorporating civility and bystander intervention training for all its employees. The company also agreed to revise its anti-discrimination and retaliation policies and procedures as well as maintain records of any future sexual harassment and retaliation complaints, audits, and reporting.

The EEOC enforces federal laws prohibiting workplace discrimination in all types of work situations, including hiring, firing, promotions, harassment, training, wages, and benefits. Most employers with at least 15 employees are covered by such national laws (20 employees in age discrimination cases). Similar state legal protections apply to many employers with smaller numbers on payroll.

EEOC Acting Chair Victoria A. Lipnic commended the employees who came forward in this case. She also acknowledged both sides for coming to a resolution that provides relief to the aggrieved individuals and makes “positive changes to the company’s workplace practices.”

The case is another stark and expensive example why employers should take all appropriate preventative measures to prevent harassment, discrimination and retaliation including unambiguous “zero tolerance” policies, adequate and regular training, and close adherence to procedures to promptly investigate and resolve employee complaints of harassment of any kind, consulting with experienced legal counsel.

See also:

• Additional Protection from Sexual Harassers (July, 2018)
• Speaking Out Against Sexual Harassment (December, 2017)
• The State of Workplace Harassment and Retaliation Claims (July, 2017)

Cindy Bamforth
August 9, 2018

Employers are sometimes uncertain how to properly respond to an employee’s request for Paid Family Leave because the name is somewhat misleading. Some unpaid “leaves of absence” (for example for medical conditions or family emergencies) are legally “protected,” meaning the employer must accept the eligible employee back to the same (or comparable) job position at the same (or comparable) pay rate. See, e.g., California “New Parent Leave Act” Impacts Small Business (December, 2017).

However, California’s Paid Family Leave (PFL) is not an additional, stand-alone protected leave of absence. Rather, it is a temporary disability program administered under the state’s Employment Development Department (EDD) to provide partial wage replacement benefits when a person must be off work in certain circumstances.

To qualify for PFL benefits of up to six weeks partial pay in a 12-month period, the employee must need time off from work to care for a seriously ill family member or to bond with a new child; be covered by State Disability Insurance; have earned at least $300 in the past five to 18 months; and submit the PFL claim to EDD within a specified time period.

If an employee applies for PFL benefits while concurrently on authorized and permitted leave under California’s Pregnancy Disability Leave (PDL), California’s New Parent Leave Act, the Federal Family and Medical Leave Act (FMLA) and/or the California Family Rights Act (CFRA), then the employer must provide job protection as legally required under any such leave law(s).

If, however, the employee qualifies to receive PFL benefits (i.e., to care for a seriously ill family member or for baby-bonding) but is not covered by any protected leave of absence (e.g., if the company has less than five employees and is therefore not required to provide any of the above-mentioned protected leaves), then the employer does not have to grant the requested time off or guarantee job reinstatement afterwards. In those circumstances, the company should base its decision to grant the requested time off on its internal policies, previous practices and, perhaps the most basic consideration, common sense.

All California employers regardless of size must comply with all PFL requirements, including filing applicable PFL forms with the EDD. When the PFL begins, employers must proceed with any payroll deductions according to the EDD’s rates and provide the employee with a Notice as to Change in Relationship.

Employers must distribute a mandatory PFL information brochure (DE 2511) to all new hires and any worker commencing such time off work. The employer must also post this information (DE 1857A) in the workplace where the employees can read it easily. To download the most current notices and posters, visit the EDD’s website. See, Changes to California Paid Family Pamphlets (July, 2015).

As state and federal leave and wage benefit regulations are complex and often overlapping, employers should have well-written, standardly-implemented policies and consult with an attorney as needed when faced with an employee requesting PFL.

See also:

• California Family Rights Act New Regulations (July, 2015)
• Requiring Use of Paid Vacations for Unpaid Leaves (August, 2012)

Cindy Bamforth
August 3, 2018