California’s Occupational Safety & Health Standards Board (OSHSB) created heat illness prevention regulations for outdoor workers in 2015. See New Heat Illness Prevention Measures Now in Place.

Those regulations require specific protective measures for outdoor work, including provision of free, fresh, and “suitably cool” drinking water, access provided to shady rest areas when temperature is over 80 degrees F, monitoring of preventative cool-down, additional high-heat (over 95 degrees F) procedures, and training. See Heat Illness Prevention Amendments Are Likely to Take Effect May 1, 2015. Cal/OSHA (California Division on Occupational Safety and Health) later took measures to increase enforcement of these preventative measures. See Cal/OSHA Increases Enforcement.

In 2016, the Legislature passed SB 1167 requiring OSHSB to propose – by January 1, 2019 – a comparable set of regulations to “minimize[…] heat-related illness and injury among workers” who work indoors. The OSHSB may choose to limit the proposal to certain industries or not. While the Legislature provided no guidelines for regulation content, presumably the OSHSB will propose protections similar to outdoor settings.

Whether these new regulations are actually needed is debatable. The National Federation of Independent Business/California contends:

“This bill is unnecessary because current regulations require employers to identify and address workplace hazards, including the risk of heat illness in indoor workplaces. If in fact indoor heat illness prevention presents a hazard which is not being adequately addressed, Cal/OSHA has other methods with which to effect compliance with current regulations.” See NFIB Reacts to Governor Brown Signing SB 1167.

Whatever the new standards, it is safe to assume Cal/OSHA will begin enforcing them as soon as they take effect in 2019. In any event, employers in industries with high-heat indoor environments should regularly review their safety measures to ensure they adequately prevent heat illness.

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

Helena Kobrin
April 11, 2017

In November 2016, California voters approved The Adult Use of Marijuana Act, also known as Proposition 64 (California Health and Safety Code [HSC] sections 11357-11362.9) which allows adults 21 years of age or older to possess and use marijuana for recreational purposes.

Fortunately, Proposition 64 does not alter the rights of California employers to maintain a drug and alcohol free workplace, nor does it require an employer to permit or accommodate the use of marijuana in the workplace. [HSC section 11362.45(f)]

Additionally, both medicinal and recreational marijuana remain a Schedule 1 controlled substance under federal law. Thus, employers may refuse to hire applicants and may terminate existing employees who test positive for marijuana.

Employers should have a drug-free workplace policy that specifically bans the use, purchase/sale, control, distribution, possession of, impairment by, or being under or arriving to work under the influence of recreational and medicinal marijuana, clearly states the circumstances in which the company will require drug testing (including testing for marijuana), and includes disciplinary actions that will be taken for violations of the policy.

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

Cindy Bamforth
April 7, 2017

These days, consumer reviews posted online can make or break a business. Some businesses have sought to prevent negative reviews through “gag clauses” – contractual provisions buried in form contracts that customers rarely read, much less are able to negotiate. New law now bars such blanket prohibitions while providing businesses new protections to deter and deal with false and malicious postings.

Effective March 14, 2017, the federal Consumer Review Fairness Act of 2016 (CRFA) prohibits non-negotiable form contracts used in selling goods or services from barring or restricting customer reviews. The CRFA protects the right to make any “written, oral, or pictorial review, performance assessment of, or other similar analysis,” including those posted electronically.

Any clause in a form contract is void if it:

• Prohibits reviews;
• Imposes any fee or penalty against someone for posting a review; or
• Requires transfer of ownership of the intellectual property rights to such a review to the company being reviewed.

Companies may still prohibit (and utilize contract terms prohibiting) the posting of trade secrets or other financial or confidential information; private personnel or medical files; private law enforcement records; or content that is otherwise unlawful or tainted by computer viruses, worms, or the like.

The CFRA of course does not restrict a business’s ability to defend itself against false postings by filing civil claims for defamation. Websites also may remove or refuse postings typically prohibited by terms of service – ones that are “clearly false or misleading,” unrelated to the goods or services on that website, or containing someone’s personal information or likeness. A website also may remove or refuse a posting that is “libelous, harassing, abusive, obscene, vulgar, sexually explicit, or inappropriate with respect to race, gender, sexuality, ethnicity, or other intrinsic characteristic.”

The Federal Trade Commission (FTC) will enforce the CFRA, and state Attorney Generals and state consumer protection agencies may also bring civil actions under this law, but must notify the FTC. Penalties for violation are the same as those for unfair and deceptive trade practices under the FTC Act, with a maximum of $40,000 per violation.

Enforcement of CFRA will commence December 14, 2017. If you have such clauses in your consumer sales contracts, review and, as appropriate, remove them promptly. This is particularly important in California or other states that already have laws in place banning blanket “gag clauses.” California was the first nationally to enact a statute protecting consumer reviews, Civil Code 1670.8. Under California’s law, in effect since January 1, 2015, no contract for consumer goods or services may prohibit a consumer from making statements about the company or the goods or services purchased. Violations of that law contain penalties ranging from $2,500-$10,000 per offense.

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

Helena Kobrin
March 24, 2017

Effective January 22, 2017, the City of Los Angeles’ (City) Fair Chance Initiative for Hiring Ordinance (FCIHO) prohibits employers with 10 or more employees located or doing business in the City from inquiring into a job applicant’s criminal history by any means, including on the application form or during the job interview, unless and until the employer extends a conditional offer of employment. See, Ban the Box in The City of Los Angeles (January, 2017).

The City’s Department of Public Works, Bureau of Contract Administration recently published two FCIHO-related documents:

• Notice to Rescind Employment Offer (Rescission Letter). Whenever an employer considers rescinding the conditional job offer based on an unsatisfactory criminal background check, it must provide a copy of this Rescission Letter or its equivalent along with the criminal history report or any other any documentation used in its decision-making to the applicant. The applicant must then be allowed a minimum of five business days from receipt of the Letter to provide additional information or documentation in his/her favor, at which time the employer must reassess and notify the applicant in writing of its final decision.

• Office of Wage Standards Individual Assessment and Reassessment Form (Form OWS). The employer must enclose a completed Form OWS with the Rescission Letter. This assessment must include a “description of the criminal conduct and why it is of concern” as well as the connection between the applicant’s criminal history and the “risks inherent in the duties” of the job position.

The City also intends to publish a list of FCIHO’s frequently asked questions later this month.

For additional assistance understanding and implementing the City’s FCIHO, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Cindy Bamforth
March 23, 2017

In an effort to deter workplace health and safety hazards, California’s Division of Occupational Safety and Health requires employers with more than 10 employees to visibly post between February 1, 2017 through April 30, 2017 a summary of certain 2016 work-related injuries and illnesses (Cal/OSHA Form 300A). Even if the employer had no such recordable work-related injuries or illnesses in 2016, it must insert zeros in each of the total lines and post it regardless.

All covered companies, including “establishments classified in agriculture, mining, construction, manufacturing, transportation, communication, electric, gas and sanitary services, or wholesale trade, and those establishments in the retail, service, finance, insurance and real estate industries” must also annually compile and maintain in its files more detailed information on such occupational injuries and illnesses on Cal/OSHA Form 300.

Unless otherwise requested by Cal/OSHA, California establishments in low-hazard industries as classified under these Standard Industrial Classification (SIC) codes are exempt from these posting requirements.

All California employers, whether exempt from the above notice requirements or not, shall immediately report “by telephone or telegraph” to the nearest Cal/OSHA district office any serious occupational injury, illness, or death no more than eight hours after the employer first becomes aware of the incident.

More information on Cal/OSHA recordkeeping requirements is available at http://www.dir.ca.gov/dosh/etools/recordkeeping/index.html.

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

Cindy Bamforth
March 10, 2017

For the past decade, California drivers have been prohibited from using a wireless mobile device for conversations unless it is in hands-free or voice-activated mode. In 2008, the Legislature further banned reading, writing, and texting messages while driving.

With evolving technology, dangerous distracted driving has taken further forms not technically prohibited such as taking photos and using GPS devices. A 2015 California Department of Motor Vehicles report noted for 2013 “12 fatal collisions involving handheld cellphone use as an inattention factor, over 500 injury collisions, and nearly 700 property damage collisions.” 2013 also saw some 426,000 violations of the cell phone ban while driving. See Assembly Floor Analysis 08/18/16.

Effective January 1, 2017, enhanced Vehicle Code section 23123.5 contains tighter restrictions on driver use of wireless devices. On the more-than-valid intention to save lives, this new section is a study in micro-managerial legislation. A driver may only operate an “electronic wireless communication device,” which “includes, but is not limited to, a broadband personal communication device, a specialized mobile radio device, a handheld device or laptop computer with mobile data access, a pager, or a two–way messaging device” if:

• The device ““is mounted on a vehicle’s windshield” in one of two places: (1) “in a seven-inch square in the lower corner of the windshield farthest removed from the driver or in a five-inch square in the lower corner of the windshield nearest to the driver and outside of an airbag deployment zone” (see Vehicle Code section 26708(b)(12)); or (2) “on or affixed to a vehicle’s dashboard or center console in manner that does not hinder the driver’s view of the road”; and
• “The driver’s hand is used to active or deactivate a feature or function of the handheld wireless telephone or wireless communications device with the motion of a single swipe or tap of the driver’s finger.”

These prohibitions do not apply to emergency services professionals in the course of their duties or to manufacturer-installed systems that are part of a vehicle.
It remains to be seen whether this wider definition of prohibited actions while behind the wheel will significantly deter such harebrained driving practices. A violation is subject only to a fine of $20 for a first offense and $50 for each subsequent offense.

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

Helena Kobrin
March 6, 2017

The U.S. Equal Employment Opportunity Commission (EEOC) has announced the number of workplace discrimination charges filed nationwide during fiscal year 2016 (October 1, 2015 to September 30, 2016).

Of the 91,503 workplace discrimination charges filed with the agency during that time, retaliation topped the list, totaling 42,018 charges, followed by race, disability, sex and age-based charges.

The EEOC’s legal staff resolved 139 lawsuits and filed 86 new lawsuits last year, securing more than $482 million for claimants.

For the first time, the EEOC included detailed information about LGBT charges in its year-end summary, with a total of 1,650 charges filed and $4.4 million obtained for LGBT claimants who filed sex discrimination charges.

Workforce education for the prevention of unlawful practices is essential for any business. While regular “zero-tolerance” sexual harassment training and well-worded anti-discrimination, harassment and retaliation policies are sound practices, employers should not stop there. To promote and maintain a professional and productive work environment, managers and workers alike should receive training on all forms of discrimination, harassment and retaliation, including gender, age, religion, sexual preference, national origin, and disability, to name a few.

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

See also, for example, our blogs:
Unlawful Retaliation Defined
Discrimination and Retaliation Claims
Is Your Harassment Policy California Compliant?
Employer Zones Out
Smokin’ Spuds Goes Down in Flames

Cindy Bamforth
February 17, 2017

Effective January 1, 2017, AB 1289 (the Act) requires all transportation network companies (TNC) such as Uber and Lyft – businesses using an online-enabled platform to connect paying passengers with drivers using their personal vehicles – to conduct a local and national background check for each participating driver.

The Act specifically prohibits a TNC from contracting with, employing, or retaining a driver if she or he:

• Is currently registered on the United States Department of Justice National Sex Offender Public Web site;

• Has been convicted of any of certain terrorism–related felonies or any of the violent crimes listed in section 667.5(c) of the Penal Code; or

• Within the previous seven years, has been convicted of: (1) any misdemeanor assault or battery; (2) any domestic violence offense; (3) driving under the influence of alcohol or drugs; or (4) any of a specified list of felonies (e.g., crimes against the executive power of the state, bribery, corruption, extortion, false personation, firearm crimes related to domestic violence, and others.)

A TNC may conduct the background check itself or have a third party do so. (Such third parties may in turn be regulated by federal and California laws for consumer reporting or investigative consumer reporting agencies. See, e.g., Pre-Employment Background Checks and Background Check for Employment.)

A business affected by the Act must include a local and national criminal background check for each participating driver that shall include a “multistate and multi-jurisdiction criminal records locator or other similar commercial nationwide database with validation,” as well as the United States Department of Justice National Sex Offender Public Website.

A TNC that fails to comply with this Act is subject to a penalty of not less than $1,000 nor more than $5,000 for each offense.

However, if you are subject to the Act and have a business in Los Angeles or San Francisco, it is a good idea to check with a knowledgeable attorney before doing any such required criminal background checks. Each of those cities has a potentially conflicting “Ban the Box” ordinance prohibiting a criminal background check prior to an offer of employment. Legal guidance can thus help determine the best possible sequence for complying with these potentially conflicting laws.

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

Helena Kobrin
February 10, 2017

Congress created the Federal Earned Income Tax Credit (EITC) in 1975 to incentivize low-income workers to seek employment rather than welfare. In 2015, California authorized the “Cal EITC” for the same purposes.

The federal and California EITC programs each reduce the amount of tax that the qualified low-income worker may owe. Each may even entitle such worker to a tax refund.

Effective January 1, 2017, Revenue and Taxation Code section 19854(a) requires California employers to notify all employees in writing they may be eligible for these state and federal tax benefits. This code section contains the required notice language.

Affected businesses must personally deliver or mail this notice to workers within one week before or after, or at the same time as, delivery of the employees’ annual wage summary, e.g., a form W-2.

To document compliance, employers should accurately record when and how they delivered the notification form to each employee.

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

Cindy Bamforth
January 26, 2017