As written about previously, Governor Newsom signed new legislation on March 19, 2021 requiring California employers to provide COVID-19 supplemental paid sick leave.  California employers were required to provide California COVID-19 supplemental paid sick leave under an old law passed in 2020 that expired on December 31, 2020.  There are a few key differences between the old requirements and the new 2021 COVID-19 Supplemental Paid Sick Leave just enacted, and California employers need to beware of these new requirements.  Below are a few of the new key provisions of the 2021 COVID-19 Supplemental Paid Sick Leave:

2021 COVID-19 Supplemental Paid Sick Leave Requirements Apply to California Employers With More than 25 Employees.

The new 2021 COVID-19 supplemental paid sick leave requirements apply to employers with more than 25 employees.  The old California supplemental paid sick leave law applied to employers with 500 or more employees.

Expanded List of Covered Reasons.

Old COVID-19 SPSL – Qualifying Reasons for employees unable to work due to any of the following reasons: New 2021 COVID-19 SPSL – Qualifying Reasons for employees unable to work or telework due to any of the following reasons:
1. The covered worker is subject to a federal, state, or local quarantine or isolation order related to COVID-19. 1. The covered employee is subject to a quarantine or isolation period related to COVID-19 as defined by an order or guidelines of the State Department of Public Health, the federal Centers for Disease Control and Prevention, or a local health officer who has jurisdiction over the workplace. If the covered employee is subject to more than one of the foregoing, the covered employee shall be permitted to use COVID-19 supplemental paid sick leave for the minimum quarantine or isolation period under the order or guidelines that provides for the longest such minimum period.
2. The covered worker is advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19. 2. The covered employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
3. The covered worker is prohibited from working by the covered worker’s hiring entity due to health concerns related to the potential transmission of COVID-19. 3. The covered employee is attending an appointment to receive a vaccine for protection against contracting COVID-19.
4. The covered employee is experiencing symptoms related to a COVID-19 vaccine that prevent the employee from being able to work or telework.
5. The covered employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
6. The covered employee is caring for a family member who is subject to an order or guidelines or who has been advised to self-quarantine.
7. The covered employee is caring for a child, whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19 on the premises.

Applies Retroactively to January 1, 2021.

The new law applies retroactively to January 1, 2021.  The Labor Commissioner’s FAQs explains:

The requirement to provide “retroactive” 2021 COVID-19 Supplemental Paid Sick Leave does not start until March 29, 2021. This “retroactive” payment is only required if the covered employee makes an oral or written request to be paid for leave that qualifies (as described above).

For example, if a covered employee had to take two hours off for a vaccine appointment on February 15, 2021, the employee can make an oral or written request to the employer to be paid for that time off in February, since it is a qualifying reason for taking 2021 COVID-19 Supplemental Paid Sick Leave.  The oral or written request must be made on or after March 29, 2021. A request made before March 29 does not count.  If an employee is unable to make the request themselves or has difficulty locating an employer to provide proper notice, they may contact the Labor Commissioner’s Office, which may be able to provide assistance.

After the employee makes the request, the employer will have until the payday for the next full pay period to pay the “retroactive” 2021 COVID-19 Supplemental Paid Sick Leave. On that payday, the employer must also provide accurate notice on the itemized wage statement of how many 2021 COVID-19 Supplemental Paid Sick leave hours remain available to the covered employee.

Employers Must Post New Poster.

The Labor Commissioner published the new 2021 COVID-19 Supplemental Paid Sick Leave required notice on its website.  Employers are required to post this notice in a location where employees can easily read it.  If employees do not visit a physical location, employers may distribute it electronically.

Update: Governor Newsom signed SB-95 on March 19, 2021.  Therefore, employers have until March 29, 2021 to ensure compliance with the new requirements. 

California’s supplemental paid sick leave for employees and food sector employees expired on December 31, 2020.  Just as California businesses are starting to reopen, California’s legislature passed and presented to Governor Newsom today (March 19, 2021) a new supplemental paid sick leave bill (SB-95) extending paid sick leave for California employees until September 30, 2021. Unlike the prior California COVID-19 paid sick leave law that applied to employers with more than 500 employees, the new law expands coverage to employers with more than 25 employees.  Here are five issues California employers need to know about the new paid sick leave law if Governor Newsom signs the bill (which is expected):

1. Covered employers

The new law would apply to employers with more than 25 employees. If signed by the Governor, the law requires the Labor Commissioner to made available within 7 days a poster required for employers to post in their workplaces.

The law also sets forth requirements for in-home supportive services, which is not addressed in this article.

2. Effective time period

The law retroactively applies to employers going back to January 1, 2021.  The law expires on September 30, 2021.

3. Qualifying reasons for paid sick leave

The law requires employers to pay COVID-19 supplemental paid sick leave to employees who are unable to work or telework due to any of the following reasons:

  1. The covered employee is subject to a quarantine or isolation period related to COVID-19 as defined by an order or guidelines of the State Department of Public Health, the federal Centers for Disease Control and Prevention, or a local health officer who has jurisdiction over the workplace. If the covered employee is subject to more than one of the foregoing, the covered employee shall be permitted to use COVID-19 supplemental paid sick leave for the minimum quarantine or isolation period under the order or guidelines that provides for the longest such minimum period.
  2. The covered employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
  3. The covered employee is attending an appointment to receive a vaccine for protection against contracting COVID-19.
  4. The covered employee is experiencing symptoms related to a COVID-19 vaccine that prevent the employee from being able to work or telework.
  5. The covered employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
  6. The covered employee is caring for a family member, as defined in subdivision (c) of Section 245.5, who is subject to an order or guidelines described in subparagraph (A) or who has been advised to self-quarantine, as described in subparagraph (B).
  7. The covered employee is caring for a child, as defined in subdivision (c) of Section 245.5, whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19 on the premises.

4. Amount of paid sick leave required

Employees are entitled to 80 hours of COVID-19 supplemental paid sick leave if they are considered full time, or if the employee worked or was schedule to work, on average, at least 40 hours per week for the two weeks preceding the date the employee took COVID-19 supplemental paid sick leave.  Otherwise, employees are entitled to their total number of hours they normally are scheduled to work for the employer over two weeks, and if the employee works a variable schedule, then they receive 14 times the average number of hours worked in the six months preceding the date the employee took COVID-19 supplemental paid sick leave.  The law also sets forth how employers are to calculate each hour of COVID-19 supplemental paid sick leave for exempt and non-exempt employees.

Limited Use of Other Leaves

The supplemental paid sick leave must be in addition to any paid sick leave available to the employee pursuant to the Healthy Workplaces, Healthy Families Act of 2014 as set forth in Labor Code section 246.  Employers may not require employees to use any other paid or unpaid leave, paid time off, or vacation time before the employee uses COVID-19 supplemental paid sick leave.  However, employers may require employees to first exhaust their supplemental paid sick leave prior to paying employees under the Cal-OSHA COVID-19 Emergency Temporary Standards.

Cap

Employers are not required to pay more than $511 per day and $5,110 in the aggregate to a covered employee for COVID-19 supplemental paid sick leave.  However, if federal legislation amended these limits as set forth in the Emergency Paid Sick Leave Act established by the federal Families First Coronavirus Response Act (FFCRA), then the increased limits would apply to the California law.

Amount Must Be Set Forth In Writing To Employee

Employers must set forth the amount of COVID-19 supplemental paid sick leave available to an employee on the employee itemized wage statement or other writing provided on the designated pay date with the employee’s payment of wages.  For employees who work variable schedules, employers must perform an initial calculation of paid sick leave available and then indicate “(variable)” next to the calculation.  Then the employer must update the calculation when the employee requests covered paid leave or request records under Labor Code section 247.5.

5. Retroactive pay required to employees

If signed by the Governor, the law requirement to provide COVID-19 supplemental paid sick leave takes effect 10 days later, but the law shall apply retroactively to January 1, 2021.  Therefore, if an employee has taken leave since January 1, 2021 which was not paid by the employer, and is covered by one of the qualifying reasons for paid leave, upon the employee’s oral or written request by the employee, the employer is required provide the employee with a retroactive payment.  This payment must be made on or before the payday for the next full pay period after the request is made.  The employer must reflect this payment on the itemized wage statement or another writing provided to the employee on the designated pay date.

For additional updates on this new proposed law, as well as other California employment laws facing employers as they reopen their businesses, will be provided during my firm’s webinar on March 24, 2021 at 10 a.m. PT.  Registration for the webinar is here.

[Update: This article has been updated to reflect the new guidance from California’s Department of Fair Employment and Housing (“DFEH”) issued in March]

Many questions exist about the COVID-19 vaccine in terms of the workplace and employees.  Here are five common questions employers face in terms of mandating the vaccine and requirements that apply to employees who have been vaccinated:

1. Can employers make employees get the vaccine?

According to the Equal Employment Opportunity Commission (EEOC), employers can generally require employees to receive a COVID-19 vaccination. However, the EEOC encourages employers to take certain precautions in mandating vaccines to avoid violations of the Americans with Disabilities Act (ADA) and other disability laws. For example, while administering the vaccine itself is not considered a medical examination that would violate the ADA, certain medical-related questions can constitute impermissible “disability-related inquiries.” However, these limitations on asking disability-related questions do not apply when a third party administers the vaccination. Additionally, employers may offer the vaccination on a voluntary basis provided that the employee’s decision to fill out any screening disability-related questions is also voluntary.

California’s DFEH provided the following guidance that permits California employers to require employees to be vaccinated:

Under the FEHA, an employer may require employees to receive an FDA-approved vaccination against COVID-19 infection so long as the employer does not discriminate against or harass employees or job applicants on the basis of a protected characteristic, provides reasonable accommodations related to disability or sincerely-held religious beliefs or practices, and does not retaliate against anyone for engaging in protected activity (such as requesting a reasonable accommodation).

2. What if, for religious or health reasons, they refuse to take it? What proof can employers ask for?

The biggest limits on a mandatory vaccine requirement are considering exemptions for individuals with sincerely held religious beliefs or health conditions that prevent them from receiving the vaccine. Sincerely held religious beliefs are covered under Title VII of the Civil Rights Act and the ADA governs medical conditions that make receiving the vaccine dangerous or inappropriate.

For individuals refuse to get vaccinated due to sincerely held religious beliefs, the employer must provide reasonable accommodations unless it would pose “undue hardship” to the employer. The EEOC states that “because the definition of religion is broad and protects beliefs, practices, and observances with which the employer may be unfamiliar, the employer should ordinarily assume that an employee’s request for accommodations is based on a sincerely held religious belief.” In other words, employers should generally not question employees about their religion. However, employers may question the nature or sincerity of the employee’s religion if they have an objective basis for doing so. In such a case, employers may be justified in asking for additional supporting information.

For employees who cannot get vaccinated due to a disability, employers must also take steps to provide reasonable accommodations. These accommodations cannot be unduly burdensome to the employer. Some reasonable accommodations for these employees include allowing them to work remotely or adjusting the employee’s duties to prevent contact with others. An employer may exclude the employee from the workplace if having the unvaccinated person on the premises would post a “direct threat” to the health and safety of other workers. However, even if such a threat does exist, employers should analyze the facts of each employee’s case closely and make individualized determinations.

The DFEH likewise explains that Under California law:

…the FEHA requires employers to reasonably accommodate employees with a known disability or sincerely-held religious belief or practice that prevents them from being vaccinated against COVID-19, as well as prohibits employers from retaliating against anyone for engaging in protected activity.

3. Can employees who received a vaccination no longer abide by social distancing protocols?

No.  As California’s COVID19.CA.GOV website explains:

Even with a vaccine, you may still be able to spread COVID-19. It is important for everyone to continue using all the tools available to us to help stop this pandemic, like:

Together, COVID-19 vaccination and taking steps to protect yourself and others will offer the best protection from getting and spreading COVID-19. We need to understand more about the protection that vaccines provide before we change recommendations.

Also, the CDC has also cautioned against individuals who have received the vaccine from attending social gatherings if they have symptoms:

Fully vaccinated people should not visit or attend a gathering if they have tested positive for COVID-19 in the prior 10 days or are experiencing COVID-19 symptoms, regardless of vaccination status of the other people at the gathering.

4. If an employee has received a COVID-19 vaccine, can they refuse to get employer mandated COVID-19 tests?

No, even after receiving the vaccine, COVID19.CA.GOV sets forth that employers may still mandate that the employee take regular COVID-19 tests: “If your job requires it, you still need to get tested regularly, even if you had the vaccine”

5. Can employers ask for proof that the employee received the vaccine?

According to the EEOC, employers may ask for proof of vaccination because such proof is not considered a disability-related inquiry. Since people who have received the vaccine are given a card, it would be reasonable to ask for proof via this card. However, employers should not ask intrusive follow-up questions such as the reasons why the employee is not getting vaccinated since these questions may be considered disability-related and accordingly trigger ADA protections. Employers should also request that employees provide them no more information than necessary as proof of vaccination in order to avoid violations of other disability laws.

According to the DFEH, employers may ask the employee for “proof” of the vaccination:

Yes. Because the reasons that any given employee or applicant is not vaccinated may or may not be related to disability or religious creed, simply asking employees or applicants for proof of vaccination is not a disability-related inquiry, religious creed-related inquiry, or a medical examination. However, because such documentation could potentially include disability-related medical information, employers may wish to instruct their employees or applicants to omit any medical information from such documentation. Any record of employee or applicant vaccination must be maintained as a confidential medical record.

In this video, I breakdown New York Governor Andrew Cuomo’s apology statement from the perspective of a California employment attorney and cover the five lessons employers should learn from this incident:

1. Duty to investigate complaints.

California Government Code section 12940(j) provides that it is “unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action.”  The law also provides that employers are liable if they “fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.”  Gov. Code section 12940(k).

2. Investigations must be done properly and impartially.

The investigator needs to be an impartial third-party that is knowledgeable on conducting investigations.  More information on how employers can conduct proper investigations can be read here.

3. Harassment can take many forms – not just physical touching.

4. The focus is on the victim’s perspective, not whether the alleged harasser intended the conduct.

The U.S. Supreme court explained, “This standard requires an objectively hostile or abusive environment—one that a reasonable person would find hostile or abusive—as well as the victim’s subjective perception that the environment is abusive.”  Harris v. Forklift Systems, Inc.

5. Do not jump to any conclusions prior to finalizing the investigation.

As a reminder, California employers with five or more employees must provide two hours of sexual harassment prevention training to supervisors, and one hour of training to employees as of January 1, 2021.  This training must be renewed every two years.

Late last year, Cal/OSHA implemented Emergency Temporary Standards that imposed dramatic new testing, training, and recordkeeping requirements related to COVID-19 exposure in the workplace. Most controversial of these new requirements was a mandate that employers “continue and maintain an employee’s earnings, seniority, and all other employee rights and benefits” for employees excluded from the workplace under the ETS regulations, unless the employee was unable to work for other reasons (including hospitalization) or the employer could demonstrate that the COVID-19 exposure was not work related. Combined with requirements that even asymptomatic close contacts be excluded for at least 10 days (regardless of a negative test), this new ETS imposed significant pay obligations on employers just as various state and federal COVID-19 paid leave requirements were expiring at the end of 2020.

As noted previously, various business groups challenged portions of the ETS in state court in San Francisco, one of several such lawsuits. But after extensive briefing from the parties (and several interested non-parties), the judge last week issued an order denying a motion to preliminarily enjoin portions of the ETS:

Plaintiff have not shown a likelihood of prevailing on the merits of their claims.  Even if they could do so, the balance of interim harms and the public interest in curbing the spread of COVID-19 and protecting worker and community health way heavily in favor of the continued implementation and enforcement of the ETS Regulations.  With the single exception of restrictions on attendance at religious services, which present unique constitutional considerations, no federal or state court in the country has blocked emergency public health orders intended to curb the spread of COVID-19, and the illness, hospitalization, and deaths that follow in its wake. [Citations] This Court will not be the first.  Lives are at stake.

There is no indication as to whether the plaintiffs will appeal. The case does not end with this denial, but the ruling means the court will allow the ETS regulations to stand while the litigation proceeds. Therefore, employers should continue to follow the ETS regulations and track new updates from Cal/OSHA.

As February ends, there are many developments on the employment legal front.  Here are five prevalent employment issues for California and across the U.S.:

1. California Supreme Court holds employers may not round time entries for meal periods.

On February 25, 2021, the California Supreme Court held that employers may not engage in time rounding time punches for meal breaks under California law.  The case, Donohue v. AMN Services, Inc., the Court held that “meal period provisions are designed to prevent even minor infringements on meal period requirements, and rounding is incompatible with that objective.”  The Court distinguished time rounding policies in the context of meal breaks from time rounding policies for tracking an employee’s work time.  A California Court of Appeal held in See’s Candy Shops, Inc. v. Superior Court (2012) that employers may use rounding policies “to calculate regular and overtime wages if the rounding policy is neutral on its face and as applied.”  In Donohue, the Court explained that meal breaks are different: “In the meal period context, however, there is an asymmetry between the treatment of rounded-up minutes (i.e., time not work that is compensated with regular pay) and the treatment of rounded-down minutes (i.e., time worked that may trigger premium pay).”

The Court also raised concerns about time rounding policies given the ease of tracking employees’ time with technology, and the Court noted, “[a]s technology continues to evolve, the practical advantages of rounding policies may diminish further.”

The Court also held that time records showing late, short, or missed meal breaks “raise a rebuttable presumption of meal period violations, including at the summary judgment stage.”

2. Lawsuit challenging Cal/OSHA Emergency Temporary Standards (ETS) regulations is denied.

On February 25, 2021, the San Francisco Superior Court denied a group of employer’s application for preliminary injunction attempting to prevent Cal/OSHA’s Emergency Temporary Standards that were issued on November 30, 2020.  In denying the preliminary injunction, the court stated that “the balance of interim harms and the public interest in curbing the spread of COVID-19 and protecting worker and community health weigh heavily in favor of the continued implementation and enforcement of the ETS Regulations.”

California employers must still comply with the Cal/OSHA ETS regulations.  For more information about the ETS regulation, see our prior post here. 

3. Federal $15 minimum wage is not going to be part of President Biden’s COVID-19 relief bill.

On February 25, 2021, the Senate parliamentarian Elizabeth MacDonough ruled that minimum-wage legislation could not be passed through the budget-reconciliation process, and therefore would not be included in the $1.9 trillion relief package.  The Federal minimum wage, which is currently at $7.25 per hour, could still be increased through other paths.  Given the 50-50 Democrat-Republican split in the Senate, it appears that an increase in the Federal minimum wage will likely need to be a compromise.  Some proposed compromises include raising the minimum wage to $11 or $12 per hour, setting increases in minimum wage on a regional basis across the country, or limited the higher minimum wage to larger employers only.  Employers across the country will need to pay attention to see how this legislation develops. Our prior post on President Biden’s COVID-19 Rescue Plan can be read here.

4. California pay data reporting is due March 31, 2021.

As California employers are preparing to file their pay reporting data with the Department of Fair Employment and Housing (DFEH) by March 31, 2021 pursuant to SB 973 (click here for more information about the pay data reporting requirements), there are many questions arising about how to collect certain information.  For example, employers need to report the pay data based on seven race/ethnicity categories:

  • Hispanic/Latino
  • Non-Hispanic/Latino White
  • Non-Hispanic/Latino Black or African American
  • Non-Hispanic/Latino Native Hawaiian or Other Pacific Islander
  • Non-Hispanic/Latino Asian
  • Non-Hispanic/Latino American Indian or Alaskan Native
  • Non-Hispanic/Latino Two or More Races

However, how are employers to gather this information?  The DFEH published FAQs that explains: “Employee self-identification is the preferred method of identifying race/ethnicity information. If an employee declines to state their race/ethnicity, employers must still report the employee according to one of the seven race/ethnicity categories, using — in this order — current employment records, other reliable records or information, or observer perception.”  Employers should document the collection of this data in order to prove compliance with this guidance from the DFEH.

5. Labor Commissioner cites Los Angeles business for COVID-19 retaliation.

On February 17, 2021, the California Labor Commissioner cited a Los Angeles employer for $125,913 for “workplace retaliation and labor law violations, after the Labor Commissioner found that the employer illegally fired four workers for reporting unsafe working conditions during the COVID-19 pandemic.”  The citations include $45,193 in lost wages, $720 in interest due, $40,000 in Section 98.6 retaliation penalties, and $40,000 in Section 1102.5 retaliation penalties.  As business begin to reopen in California, employers must be aware of potential COVID-19 claims and ensure all employment decisions are well documented.

Employers need to remember these five key rules for documenting and providing feedback on employee performance:

1. For at-will employees, there is no legal obligation for employers to provide three warnings to employees prior to a termination.

Some employers have the misconception that employees must be given three warnings prior to being terminated.  This is not the case, as long as the company has maintained the employee’s at-will status.

2. Get employee feedback during counseling.

Employees are more likely to ultimately accept critical performance reviews if their feedback is heard. This does not mean that the employer must agree with the employee’s feedback, but just that the employer is considering their feedback in the decision-making process and the employee is not being prejudged. A good example on how obtaining the employee’s feedback avoided a potentially embarrassing situation and harming a relationship with the employee was noted in an article by SHRM (“How to Create Bulletproof Documentation”). The article recalled a situation when a manager wanted to discipline an employee for being late to her new position in the company. But prior to issuing the discipline, the HR manager asked the manager to seek clarification from the employee about why she was late. The manager followed the advice, and it turned out that the employee’s tardiness was a result of employee providing training to the replacement at her prior position in the company.

3. Send confirming emails to avoid misunderstandings and to document conversations.

After having a conversation with an employee, it is recommended to follow-up with conversation with a confirming email.  The confirming email provides two benefits: it clearly sets forth what the manager’s criticism and expectation for how the employee must improve, as well as documents the date and what was said during the conversation.  Yes, managers are busy and this is hard to develop as a practice, but keep in mind that the confirming email can be short and to the point.  In addition, if the manager does not have time to send the email that day, while it is best to send the confirming email as soon as possible, it is still better sending the confirming email a couple of days after the conversation.

4. Avoid vague language like “bad attitude” or “failure to get along with other employees.”

One of the hardest issues as a litigator is defending a wrongful termination claim when the documentation provided to the employee contains vague criticisms of the employee’s performance. Managers should avoid at all costs performance reviews that the employee has a “bad attitude.” If litigation ensues, and the company is forced to defend its decision to terminate the employee, vague statements like this do not clearly establish the reasons for the termination. Instead, a creative plaintiff’s lawyer can spin this language as evidence to support their allegation that the reason was based on the employee’s complaint, race, gender or age. A good practice is to use concrete examples in the performance review, such as:

  • You were 25 minutes late today.
  • Your conduct towards your coworker was unacceptable today when you informed Mr. Jones that “it was not your job to help him and he should know how to do these tasks by now.” You are expected to assist others in all aspects of their job, and to the extent they need additional help, you need to provide assistance to ensure that the customer’s needs are met.
  • You did not provide adequate customer service last Tuesday when you ignored the customer’s request for help in retrieving a different size three times.

5. Employees do not have to sign performance reviews to make them “official.”

Another common misconception is that employees must sign performance reviews in order for the review to have any effect.  While it is a good practice to have employees sign performance reviews to avoid any disputes that they were never shown the performance review, it is no legal requirement to have the employee sign the document. Employees often object to signing documents criticizing their performance. There are two potential responses to this objection: 1) have the employee’s acknowledgment clearly state that the employee’s signature is only acknowledging receipt of the document, not agreeing with the content, or 2) if the employee simply refuses to sign, have the manager or a witness sign and date the document with a notation that the document was provided to the employee and he or she refused to sign.

Also remember that write-ups and documentation do not have to be on any “official” forms.  Managers sometimes feel that they must wait until they can officially document an employee’s performance on the company’s official form. However, managers need to be trained on how to document performance and it must be made clear to them that while the company’s forms are preferred, documentation can be done on many formats, such as: e-mail to oneself or to HR, the manager’s log, any paper available, or even electronically on any other company device. I personally like when managers send emails to themselves documenting conversations with employees. Given the data associated with e-mails, such as time and date created, e-mails are excellent documentation of a manager’s conversation with an employee about performance issues. Managers should also be reminded that they need to document verbal warnings in some manner – if the verbals are not documented, it is as if they never occurred.

Under California law, employers have a duty to investigate misconduct and take remedial action to prevent further discrimination or harassment from occurring in workplace. See Gov. Code section 12940 (j)(1)(k).  This Friday’s Five lists five action items employers should utilize when conducting workplace investigations:

1. Selecting the investigator

Employers should take time to train an in-house person who can conduct harassment investigations.  This person, usually someone from Human Resources (but it does not need to be) should have additional experience and training about how to investigate these claims.  First, the person needs to be able to conduct appropriate investigations to limit the liability to the company.  Second, the person’s experience and training will likely be closely examined, if not challenged by opposing counsel if the case develops into litigation.  Therefore, someone with experience and who is well credentialed is preferred.

Also, consideration should be given on whether an outside investigator is needed to conduct the investigation.  Employers may utilize someone internal in the company for investigations, but to the extent there is a conflict of interest (see below) or the need for a more experienced investigator, it would be a good practice to consider involving a professional outside investigator.

2. The investigation must be free of any appearance of influence or bias

The investigator must not have any personal involvement with any of the parties who are a part of the investigation.  To avoid any appearance of undue influence, the investigator must not be subject to any control or supervisory control from the alleged harasser.  This means that for smaller companies, or in cases where the owner or president of the company is alleged to have harassed someone, it is recommended that an outside third-party that is independent from the company be hired to conduct the investigation.

3. The investigation must ask the right questions

Employers must remember that they have a duty to investigate various types of misconduct in the workplace, not only claims of sexual harassment.  The various allegations must be approached differently and the types of questions will obviously differ for different types of claims.

In terms of investigating sexual harassment claims, the EEOC provides the following examples of questions to ask during an investigation:

Questions to Ask the Complainant:

  • Who, what, when, where, and how: Who committed the alleged harassment? What exactly occurred or was said? When did it occur and is it still ongoing? Where did it occur? How often did it occur? How did it affect you?
  • How did you react? What response did you make when the incident(s) occurred or afterwards?
  • How did the harassment affect you? Has your job been affected in any way?
  • Are there any persons who have relevant information? Was anyone present when the alleged harassment occurred? Did you tell anyone about it? Did anyone see you immediately after episodes of alleged harassment?
  • Did the person who harassed you harass anyone else? Do you know whether anyone complained about harassment by that person?
  • Are there any notes, physical evidence, or other documentation regarding the incident(s)?
  • How would you like to see the situation resolved?
  • Do you know of any other relevant information?

Questions to Ask the Alleged Harasser:

  • What is your response to the allegations?
  • If the harasser claims that the allegations are false, ask why the complainant might lie.
  • Are there any persons who have relevant information?
  • Are there any notes, physical evidence, or other documentation regarding the incident(s)?
  • Do you know of any other relevant information?

Questions to Ask Third Parties:

  • What did you see or hear?
  • When did this occur? Describe the alleged harasser’s behavior toward the complainant and toward others in the workplace.
  • What did the complainant tell you?
  • When did s/he tell you this?
  • Do you know of any other relevant information?
  • Are there other persons who have relevant information?

4. The investigator must make credibility assessments

The EEOC again provides some guidance on the factors to use when determining which witnesses are more credible:

  • Inherent plausibility: Is the testimony believable on its face? Does it make sense?
  • Demeanor: Did the person seem to be telling the truth or lying?
  • Motive to falsify: Did the person have a reason to lie?
  • Corroboration: Is there witness testimony (such as testimony by eye-witnesses, people who saw the person soon after the alleged incidents, or people who discussed the incidents with him or her at around the time that they occurred) or physical evidence (such as written documentation) that corroborates the party’s testimony?
  • Past record: Did the alleged harasser have a history of similar behavior in the past?

None of the above factors are determinative as to credibility. For example, the fact that there are no eye-witnesses to the alleged harassment by no means necessarily defeats the complainant’s credibility, since harassment often occurs behind closed doors. Furthermore, the fact that the alleged harasser engaged in similar behavior in the past does not necessarily mean that he or she did so again.

5. The investigation’s final determination and continual monitoring

After making credibility determinations and evaluating the facts, management of the company must make a determination about whether or not the misconduct occurred.  The parties should be informed of the determination.  Even if the employer determines that harassment or discrimination did not occur, the EEOC takes the position that the employer should take steps such as preventative training and continued monitoring.  Moreover, even though the underlying harassment may not have occurred, a supervisor could still be held liable for retaliating against the employee who filed the harassment complaint that was found not to have any support.  Therefore, it is important for employers to inform the parties involved of the outcome, unacceptable behavior as a result of the determination, and to ensure ongoing compliance with the company’s findings and legal obligations.

California law requires employers to provide certain documents to employees.  Here are five documents California employers should consider in developing an end of employment packet:

1. Notice to Employee as to Change in Relationship (required under California Unemployment Insurance Code 1089)

As the EDD explains:

Written notice must be given immediately to employees of their discharge, layoff, leave of absence, or change in employment status. This sample notice (PDF) meets the minimum requirements. You may wish to prepare a duplicate employee notice and keep a copy for your records. No written notice is required if it is a voluntary quit, promotion or demotion, change in work assignment or location (some changes in location require a WARN notice), or if work stopped due to a trade dispute.

2. For Your Benefit, California’s Program for the Unemployed (published by the EDD)

3. COBRA and Cal-COBRA notices (can be obtained from health insurance provider)

4. Health Insurance Premium (HIPP) Notice (for employers with 20 or more employees, the Department of Health Care Services requires this form)

5. Documenting reason for termination (not legally required, but good practice)

Employers should establish a protocol for documenting the reason for termination.  While this does not necessarily need to be provided to the employee being terminated, the documentation is critical in defending potential litigation.  Some considerations for documenting an employee termination could include the following:

  • Is there a company policy that was violated? This is policy in writing?  Has it been distributed to the employee, and has the employee signed an acknowledgment of the policy?
  • Who was involved in the termination decision?
  • Review reasons for termination, and have clear guidelines for seeking legal counsel to avoid any potential wrongful termination or discrimination claims.

Employers need to also review their obligations and forms that are required for their particular industry or situation.

On January 26, 2021, Los Angeles County extended the Los Angeles County COVID-19 Supplemental Paid Sick Leave Ordinance to continue “until two weeks after the expiration of the COVID-19 local emergency as ratified and declared by the Board.”  The new ordinance also retroactively applies to businesses starting on January 1, 2021.  The new ordinance differs slightly from the prior ordinance that expired on December 31, 2020.  Here are five issues Los Angeles employers need to understand about the new Los Angeles County Supplemental Paid Sick Leave Ordinance that was passed on January 26, 2021:

1. Effective time period:

January 1, 2021 to “until two weeks after the expiration of the COVID-19 local emergency as ratified and declared by the Board.”

2. Covered employers and employees:

Covered Employers: Effective January 1, 2021, the new ordinance applies to all employers in the unincorporated areas of Los Angeles County.  The prior ordinance, which was in place from March 31, 2020 to December 31, 2020, applied only to employer with 500 or more employees nationally.

Covered Employees: The new ordinance applies to employees who perform work within the unincorporated areas of the County.  Food sector workers, as defined in the Governor’s Executive Order N-51-20, were excluded from this from the original ordinance, but as of January 1, 2021, food sector employees are now covered under the new ordinance.  Employers may also exclude emergency responders or health care providers (as defined by the Ordinance) from being eligible for paid sick leave.

3. Covered reasons for leave:

Like the original ordinance, the amended ordinance requires that employers must provide paid sick leave to employees at the written request (including, but not limited to, email and text) of an employee if the employee cannot work because:

  1. A public health official or healthcare provider requires or recommends the employee isolate or self-quarantine to prevent the spread of COVID-19;
  2. The employee is subject to a federal, State, or local quarantine or isolation order related to COVID-19 (e.g., is at least 65 years old or has a health condition such as heart disease, asthma, lung disease, diabetes, kidney disease, or weakened immune system);
  3. The employee needs to care for a family member who is subject to a federal, State, or local quarantine or isolation order related to COVID-19 or has been advised by a health care provider to self-quarantine related to COVID-19; or
  4. The employee takes time off work because the employee needs to provide care for a family member whose senior care provider or whose school or childcare provider ceases operations in response to a public health or other public official’s recommendation.

Employers may require a doctor’s note or other documentation confirming that the employee is entitled to sick leave under one of these qualifying reasons.  Note that this requirement differs from Los Angeles City’s prohibition on employers being able to require a doctor’s note under the LA City’s Supplemental Paid Sick Leave Ordinance.

4. Amount of paid sick leave:

Employees who work at least forty hours per week or is classified as a full-time employee is entitled to 80 hours of supplemental paid sick leave.  The amount of pay is calculated on the employee’s highest average two week pay during the period of January 1, 2020 to the effective date of the ordinance, which is January 1, 2021.

Employees who work less than 40 hours per week and is not classified as a full-time employee is entitled to paid sick leave calculated at the employee’s average two week pay over the period of January 1, 2020 to January 1. 2021.

An employee who has already exhausted their supplemental paid sick leave under the prior ordinance or the Families First Coronavirus Response Act (“FFCRA”) by December 31, 2020 is not eligible for any additional supplemental sick leave.

5. Cap on payments:

The amount of paid sick leave is capped at $511 per day and $5,110 in the aggregate.  Paid sick leave under the Ordinance is in addition to any paid sick leave available to employees under Labor Code 246.  Employees of joint employers are only entitled to the total aggregate amount of leave specified for employees of one employer.

California employers must continue to monitor all leave obligations under federal, state, and local laws.  This area of the law is quickly evolving, and employers must consult a qualified attorney on navigating these issues.