Employment Laws to Know Right Now: Mid-Year Employment Law Update - June 9, 2020 This presentation is offered for informational purposes only, and ...

Employment Laws to Know Right Now:
 Mid-Year Employment Law Update
                                                     June 9, 2020
This presentation is offered for informational purposes only, and the content should not be construed as legal advice on any matter.

I specialize in advising and defending employers on a variety of labor
and management matters, including discrimination, harassment,
retaliation, wrongful termination, unfair competition, and wage and
hour claims. I also counsel employers on effective ways to reduce their
risk of litigation through policy changes, employee handbook updates
and revisions, compliant leaves of absence, workplace investigations,
discipline and terminations, employment agreements, arbitration
agreements, and other human resource issues and strategies.

Email: ejohnson@srclaw.com
Phone: 858-381-0785
LinkedIn: https://www.linkedin.com/in/erik-t-johnson-27977b63/

Conscious Capitalism Tenets

Poll Question

Federal, State, and Local
Developments Related to COVID-19

Federal: Focus On Safely Reopening Businesses
• White House Guidance: https://www.whitehouse.gov/openingamerica/

• CDC Guidance:
   • https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-
     response.html
   • https://www.cdc.gov/coronavirus/2019-ncov/community/office-buildings.html

• Occupational Safety and Health Administration (“OSHA”)
  https://www.osha.gov/SLTC/covid-19/

Chat: What are your concerns about going back to the
   office/work or bringing employees back to the
                    office/work?

State: Safe Reopening and Setting Industry
                       Standards
• Cal/OSHA Interim General Guidelines on Protecting Workers from COVID-19
   • Update Injury and Illness Prevention Program to establish infection control measures
       • Provide employees with cloth face covers or encourage employees to use their own face covers when in
         workplaces with others.
       • Encourage employees to telework from home when possible.
       • Practice physical distancing by cancelling in-person meetings, using video or telephonic meetings, and
         maintaining a distance of at least 6 feet between persons at the workplace when possible.
       • Establish procedures to routinely clean and disinfect commonly touched objects and surfaces such as
         elevator buttons, handrails, copy machines, faucets, and doorknobs. Surfaces should be cleaned with
         soap and water prior to disinfection.
            • Provide EPA-registered disposable wipes for employees to wipe down commonly used surfaces before use.
            • Avoid shared workspaces (desks, offices, and cubicles) and work items (phones, computers, other work tools,
              and equipment) when possible.
            • Ensure there are adequate supplies to support cleaning and disinfection practices.

State: Safe Reopening and Setting Industry
                   Standards
• Cal/OSHA Interim General Guidelines on Protecting Workers from COVID-
  19
   • Provide employee training on topics specified by Cal/OSHA
       • Employees are complaining to Cal/OSHA
   • Provide washing facilities with “adequate supply of suitable cleansing agents, water,
     and single-use towels or blowers”
   • https://www.dir.ca.gov/dosh/coronavirus/
   • For more information about recording and reporting requirements for work-related
     cases of COVID-19, visit: https://www.dir.ca.gov/dosh/coronavirus/Reporting-
     Requirements-COVID-19.html

State: Safe Reopening and Setting Industry Standards
• California Resilience Roadmap (https://covid19.ca.gov/roadmap/)
   • Before reopening, all facilities must:
      • Perform a detailed risk assessment and implement a site-specific protection plan.
      • Train employees on how to limit the spread of COVID-19, including how to screen
        themselves for symptoms and stay home if they have them.
      • Implement individual control measures and screenings
      • Implement disinfecting protocols
      • Implement physical distancing guidelines

State: Safe Reopening and Setting Industry Standards
• California Resilience Roadmap (https://covid19.ca.gov/roadmap/)
   • Consult state’s guidance for your industry sector
     (https://covid19.ca.gov/industry-guidance/)
      • If there is no guidance for your sector, you are not allowed to reopen.
      • Even if there is guidance for your sector, county officials make decision about what
        sectors can open.
   • Complete checklist for your sector
      • Implement, post and distribute as required

Chat: Is anyone here located outside
 San Diego County? If so, where?

County of San Diego
• Reopening controlled by County of San Diego Health and Human Services
  Agency Health Orders
   • Updated frequently (last updated June 8th)
   • Only “essential businesses” and “reopened businesses” may open if in compliance with
     Health Order
       • Businesses outside of those categories (“non-essential businesses”) can open if employees
         and owners can provide services from home without contact with the public
   • Essential businesses that allow members of the public to enter must prepare,
     implement, post, and distribute a “Social Distancing and Sanitation Protocol,” which is
     available at:
     https://www.sandiegocounty.gov/content/dam/sdc/hhsa/programs/phs/Epidemiology/c
     ovid19/SOCIAL_DISTANCING_AND_SANITATION_PROTOCOL_04022020_V1.pdf

County of San Diego
• Reopening controlled by County of San Diego Health and Human Services Agency
  Health Orders
   • All “reopened businesses” must prepare, implement, post, and distribute a “Safe Reopening
     Plan,” which is available at
     https://www.sandiegocounty.gov/content/dam/sdc/hhsa/programs/phs/Epidemiology/covid
     19/Community_Sector_Support/BusinessesandEmployers/SafeReopeningPlanTemplate.pdf
       • Different form for certain restaurants, bars, wineries, and breweries
       • Must also include mandatory measures from the state’s industry guidance as part of Safe
         Reopening Plan and include measures suggested by the state to maintain proper sanitation,
         employee screening, social distancing, and facial coverings.
   • Reopened businesses may open when state has posted applicable industry guidance, the
     Public Health Officer has posted an acknowledgment of the reopened status on the County of
     San Diego Coronavirus Website, and the business has complied with requirements in Health
     Order

County of San Diego
• Reopening controlled by County of San Diego Health and Human Services
  Agency Health Orders
   • All essential businesses and reopened businesses must:
       • require employees and contractors to have face coverings and wear them when dealing with
         the public or when they cannot socially distance from other employees
       • Conduct symptom screening of all employees and prohibit employees with a temperature of
         100 degrees or more (or who are displaying COVID-19 symptoms) from entering the
         workplace
           • Slightly different from previous County Health Orders

What if my employee does not want to
           return to work?

What if I don’t want to return to work?

State: Unemployment Insurance
• Unemployment Insurance available when an individual has lost their job
  through no fault of their own, and are “able and available” to work.
   • Workers who have quit may be eligible if they have good cause
• UI benefits cover approximately 50 percent of wages, up to a maximum
  of $450 per week, which is taxable. The Federal CARES Act adds $600 to
  each weekly benefit check retroactive from March 29 until the week
  beginning July 25, extends the maximum weeks of UI benefits from 26
  weeks to 39 weeks retroactive to February 2
   • CARES act also allows Pandemic Unemployment Assistance payments to self-
     employed individuals or those with insufficient base period earnings through
     December 31, 2020

State: Disability Insurance and Paid Family Leave (“PFL”)
• State Disability Insurance (“SDI”) eligibility defines “disability” to
  include any illness or injury, or related medical condition
  preventing regular or customary work.
   • A claimant could also certify for benefits with a state or local health
     officer’s written order of being infected or suspected of being infected
     with a communicable disease
• PFL benefits allow up to six weeks of benefits at the SDI rate to
  Californians who are unable to work because they are caring for
  an ill or quarantined family member with COVID-19, or another
  disability, if certified by a medical professional.

• Families First Coronavirus Response Act (“FFCRA”)
   • High-level overview
   • In effect through December 31, 2020
   • Documentation
   • Calculating the “regular rate of pay”
   • Claiming the tax credit
   • Employee may be able to take leave if his or her child’s care provider during
     the summer—a camp or other programs in which the employee’s child is
     enrolled—is closed or unavailable for a COVID-19 related reason.
   • What will 2020-2021 school year look like?
• Other leave laws at play: paid sick leave, kin care, FMLA/CFRA, school
  activities leave, ADA

Questions?

New Court Decisions

• McPherson v. EF Intercultural Foundation
   • Accrued vacation has to be paid at the end of employment.
   • EF Intercultural included a vacation policy in its handbook, which provided a
     specified number of vacation days for certain salaried positions; the vacation policy
     that applied to these particular plaintiffs was untracked and unwritten.
       • These employees did not accrue vacation days and were only required to notify a supervisor
         before taking time off.
   • Court held that, although EF Intercultural characterized its policy as unlimited, its
     actual practice was to give plaintiffs a fixed amount of vacation time with an implied
     limit of two to four weeks, which was really no different from the amount of PTO
     provided to other corporate employees under the policy set forth in the handbook
   • "We by no means hold that all unlimited paid time off policies give rise to an
     obligation to pay 'unused' vacation when an employee leaves."

• McPherson v. EF Intercultural Foundation
   • Guidance for employers that already have implemented or are considering
     adopting an unlimited vacation policy:
      • Have unlimited vacation policy in writing
      • Clearly provide that employees' ability to take paid time off is not a form of additional
        wages for services performed, but perhaps part of the employer's promise to provide a
        flexible work schedule — including employees' ability to decide when and how much
        time to take off;
      • Spell out the rights and obligations of both employee and employer and the
        consequences of failing to schedule time off;
      • Allow sufficient opportunity for employees to take time off, or work fewer hours in lieu
        of taking time off; and
      • Administer policy fairly so that it neither becomes a de facto “use it or lose it policy” nor
        results in inequities, such as where one employee works many hours, taking minimal
        time off, and another works fewer hours and takes more time off.

• Herrera v. Zumiez, Inc.
   • Reporting time pay: form of wages that compensates employees who are
     scheduled to report to work but who are not put to work or furnished with
     less than half of their usual or scheduled day’s work because of inadequate
     scheduling or lack of proper notice by the employer
      • Employees must be paid no less than 2 hours and no more than 4 hours at regular rate of
        pay
   • Law’s purpose

• Herrera v. Zumiez, Inc.
   • Plaintiff filed class action against Zumiez, alleging the company failed to provide
     reporting-time pay to employees at its California retail stores for their "Call-In" shifts.
   • Employees scheduled for a Call-In shift were required to make themselves available
     to work during the shift and then call their manager 30 to 60 minutes before the shift
     or, if they worked a shift immediately before the Call-In shift, contact their manager
     at the end of that shift.
   • Manager would then tell the employee whether s/he was required to work during
     the Call-In shift. If the employee was not required to work, Zumiez would not pay the
     employee.
   • Zumiez tried to dismiss the case, which the Ninth Circuit denied based on Ward v.
     Tilly's, Inc., which held that an employee need not physically report to work to be
     eligible for reporting time pay.

• Other notable cases so far this year:
   • Frlekin v. Apple: time spent by employees in exit searches is compensable
   • Brome v. California Highway Patrol: “locker room talk” like “gay” (“I hated that
     movie—it was so gay”) and “fag” can create an “objectively intolerable”
     environment that would force an employee to resign (“constructive
     termination”)
   • Techno Lite, Inc. v. Emcod, LLC: agreement not to compete with employer
     while still employed is enforceable
   • Noori v. Countrywide Payroll & HR Solutions, Inc.: use of a fictitious name on
     pay stub violates California law (must be the name of the “legal entity” that is
     the employer)

Pending Legislation

• AB 2992: would provide the victims of violent crimes and families of homicide victims time to
  recover without fear of job loss and receive expanded unpaid leave
• AB 2999: Requires employers to provide 10 days of unpaid bereavement leave regardless of
  how long the employee has worked for the employer and establishes a new private right of
  action
• AB 1107: raises employers’ share of payroll taxes to fund an increase in unemployment
  payments
• AB 3216: may entitle an employee to take up to 36 weeks of job-protected leave for family
  care and medical leave taken due to COVID-19. The bill also requires employers to allow
  employees to take 10 days of paid leave for specified purposes related to a state of
  emergency
• AB 1545: require a state agency to assist a small business in complying with all statutes and
  regulations administered by the state agency and in any enforcement action by the state
  agency
• AB 2457: limits audits and penalties against businesses that may have misclassified workers
  as independent contractors

• California Department of Fair Employment and Housing (“DFEH”) now
  has free online training courses to satisfy California’s sexual
  harassment and abusive prevention training requirements.
  • https://www.dfeh.ca.gov/shpt/ (one hour course only)
  • By 1/1/21, California businesses with five or more employees must provide all
    nonsupervisory employees with one hour of sexual harassment prevention
    training every two years.
     • New hires: training must be offered within six months of hire
  • Employers with 5 or more employees must provide supervisory employees
    with two hours of training every two years, and within six months of hire

Off-Duty Conduct & Work

• When can off-duty conduct become a discipline issue at work?
   • Labor Code includes a number of protections for workers, including those
     who have faced adverse employment actions for engaging in lawful activities
     during nonworking hours
   • Four key questions:
      •   Was the alleged conduct unlawful?
      •   Was the alleged conduct a violation of any company policy?
      •   Is the policy being enforced consistently?
      •   Does the employer have a bigger picture goal to take a particular stand?
   • Takeaway: policies matter
      • They need to be effectively communicated and consistently applied.

Closing discussion: What conversations are
you having with your stakeholders (or is your
employer having with you) about Black Lives
   Matter, racial justice, and social justice?

Thank You and
Stay Safe and Healthy!