The Families First Coronavirus Response Act was passed by the Senate and signed by President Trump on March 19, 2020.  The Act provides for two paid leaves that employers across the United States must provide to employees in response to the coronavirus epidemic.  The Act is effective in 15 days and applies to employers with 1 to 499 employees – yes, you read that right, large employers with 500 or more employees do not have to comply with this law.  It expires on December 31, 2020.  The Act provides for two sources of paid leave: Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act.

Emergency Paid Sick Leave Act (EPSLA)

Covered Employees: All employees.

Covered Employers: Employers with fewer than 500 employees.

Amount of Leave:

  • Full time employees: 80 hours of paid leave
    • Calculated at their regular rate of pay (as calculated by the FLSA) or the minimum wage, whichever is greater.
  • Part-time employees: Average number of hours worked over a two-week period.
    • If employee works a variable schedule, it is the average number of hours they worked per day over the previous six months. If the employee has not worked this long, it is the reasonable expectation of the employee at the time of hire of the average number of hours per day the employee would normally be scheduled.

The Emergency Paid Sick Leave Act sets forth six covered reasons qualifying for paid sick leave, and a corresponding rates of pay for the employee and a cap on payments to the employees depending on the reason for leave:

Covered Reason For Leave Rate of Pay Cap on Payments
(1) The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID–19 The employee’s regular rate of pay (as determined under section 7(e) of the Fair Labor Standards Act of 1938 (29 U.S.C. 207(e)). $511 per day and $5,110 in the aggregate
(2) The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID–19 The employee’s regular rate of pay (as determined under section 7(e) of the Fair Labor Standards Act of 1938 (29 U.S.C. 207(e)). $511 per day and $5,110 in the aggregate
(3) The employee is experiencing symptoms of COVID–19 and seeking a medical diagnosis. The employee’s regular rate of pay (as determined under section 7(e) of the Fair Labor Standards Act of 1938 (29 U.S.C. 207(e)). $511 per day and $5,110 in the aggregate
(4) The employee is caring for an individual who is subject to an order as described in subparagraph (1) or has been advised as described in paragraph (2). Two-thirds of the employee’s regular rate of pay. $200 per day and $2,000 in the aggregate
(5) The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID–19 precautions. Two-thirds of the employee’s regular rate of pay. $200 per day and $2,000 in the aggregate
(6) The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor. Two-thirds of the employee’s regular rate of pay. $200 per day and $2,000 in the aggregate

Employers cannot require employees to use any other leave prior to using the Emergency Paid Sick Leave.

Notice requirements: Employers must post a notice in conspicuous places on the premises of a notice to be prepared by the Secretary of Labor.  The Secretary of Labor has 7 days after the enactment of the Act to make the notice publicly available.

The Act cannot not diminish the rights or benefits of employees provided under any other Federal, State, or local law, collective bargaining agreement, or existing employer policy.

Employers are not required to pay out any unused Emergency Paid Sick Leave at the end of employment.

 

Emergency Family and Medical Leave Expansion Act

Eligible employees: An employee who has been employed for at least 30 calendar days.

Covered employers: An employer with fewer than 500 employees.

Qualified reasons for paid FMLA leave: When the employee is unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency (with respect to a COVID-19 declared by a Federal, State, or local authority), the employee may take up to 12 weeks of leave.

Amount of paid leave:

  • First 10 days may be unpaid (but employee may use other paid leaves during this time)
  • Paid at no less than two-thirds of the employee’s regular rate of pay (as determined by the FLSA) and the number of hours the employee would normally be scheduled to work for up to 12 weeks.
  • Paid leave shall not exceed $200 per day and $10,000 in the aggregate.

Reinstatement rights:  Employees are entitled to reinstatement to the same position or an equivalent position, unless the employer employs fewer than 25 employees.  In that case, the employer must make reasonable efforts to provide the employee with a position or an equivalent position for 1 year after the “public health emergency concludes” or 12 weeks after commencement of the leave, whichever is earlier.

Exclusions: The Secretary of Labor has authority to issue regulations for good cause to exclude certain health care providers and emergency responders, and to exempt small businesses with few than 50 employees if requirements would “jeopardize the viability of the business as a going concern.”

The Act provides payroll tax credits granted to employers to offset the costs associated with these employer provided mandates.  This is a concern for many business owners, especially restaurant owners, who have been forced to close or substantially reduce their operations to take-out only, and now must find extra money for these payments and wait for a tax credit.

Updated March 22, 2019

In response to the coronavirus, many cities throughout California are issuing emergency orders and placing temporary restrictions on certain business, such as restaurants, bars, movie theaters, bowling alleys, arcades, and gyms.  Los Angeles City has issued an order to temporary close these type of establishments until March 31, 2020.  If an employer is temporarily closing its operations to comply with these orders, there are a few employment issues that must be considered:

Paychecks

There may not be a need to issue employees a paycheck at the time they are being informed of a temporary shutdown if the employer expects a continuing employment relationship.  But this issue is one that must be approached carefully.

Employers should make clear that the employment relationship is expected to continue, and should endeavor to provide an expected return date, subject to reconsideration as circumstances develop.

California Labor Code has very specific requirements regarding final pay checks for terminated employees.  Employers should consult legal counsel to ensure compliance with these requirements.

Filing for Unemployment Insurance

If an employer reduces hours or shut down operations due to coronavirus, employers can encourage employees to file an Unemployment Insurance (UI) claim. UI provides partial wage replacement benefit payments to workers who lose their job or have their hours reduced, through no fault of their own. The EDD’s website provides, “Workers who are temporarily unemployed due to COVID-19 and expected to return to work with their employer within a few weeks are not required to actively seek work each week. However, they must remain able, available, and ready to work during their unemployment for each week of benefits claimed and meet all other eligibility criteria.”  For more information, see: https://edd.ca.gov/Unemployment/Filing_a_Claim.htm

Paid Sick Leave Under State and Local Laws

Employees may be eligible to use paid sick leave under state and local law.  For example, California’s Labor Commissioner has issued FAQs on California’s paid sick leave law during the coronavirus epidemic and explains, “Paid sick leave can be used for absences due to illness, the diagnosis, care or treatment of an existing health condition or preventative care for the employee or the employee’s family member.  Preventative care may include self-quarantine as a result of potential exposure to COVID-19 if quarantine is recommended by civil authorities.” For more information about California paid sick leave, see the Labor Commissioner’s FAQ here: https://www.dir.ca.gov/dlse/2019-Novel-Coronavirus.htm.

Federal Bill: Families First Coronavirus Response Act

The U.S. House of Representatives passed the Family First Coronavirus Response Act the evening of Monday, March 16, 2020.  The bill, as currently drafted, requires employers to provide employees with two weeks of paid sick leave during the coronavirus epidemic, and also expands the Family and Medical Leave Act (FMLA) to provide up to 12 weeks of job-protected leave.  After the employee has taken the two weeks of paid leave, they will be able to take the additional FMLA leave at two-thirds of the employee’s usual pay.  The bill requires employers to pay the employees during these leaves, and then provides reimbursement of this cost through a refundable tax credit.  Some Senators have expressed concerns that the paid sick leave requirement will burden businesses too much during this already trying time.  The Senate is reviewing the bill this week.

[Our analysis of the final Family First Coronavirus Response Act signed by the President can be found here.]

On March 15, 2020, Governor Newsom called upon all bars, wineries, nightclubs, brewery tap rooms and other alcohol related venues to close.  While the order is not legally enforceable, employers in the state need to decide if they are going to close, and plan for potential closures in the near future.  California employers need to plan for and understand their obligations regarding wage and hour laws that will likely be issues during the next few weeks.

Must an employer pay an employee who cannot work during an emergency, such as during a government mandated shut-down?

Generally, there is no legal obligation for employers to pay employees if the business is shut down because of an Act of God (see below), or if an employee needs time off because of an evacuation order, to care for themselves, family members, or protect their property (except if it triggers paid sick leave under local or state law as discussed below).

However, if the employee is an exempt employee, generally, they must be paid their full weekly salary if they perform any work during the week.  There are some limited exceptions to this, but employers must approach this issue with caution.  Exempt employees must be paid their salary, and generally the only exception to this is if they perform no work for the entire workweek, and the reduction in pay for the week does not bring them under the salary threshold.

As for hourly, non-exempt employees, employers may permit employees to take any PTO or accrued vacation during times of disasters.  If the employee is sick or must attend to a family member who is sick as a result of the disaster, this time off would also likely trigger paid sick leave under state or local law.

Reporting time pay obligations

California law requires an employer to pay “reporting time pay” under the applicable Wage Order.  This requires that when an employee is required to report for work and does report, but is not put to work or is furnished less than half of the employee’s usual or scheduled day’s work, the employee shall be paid for half the usual or scheduled day’s work, but in no event for less than two (2) hours, nor more than four (4) hours, at the employee’s regular rate of pay, which cannot not be less than the minimum wage.

In addition, if an employee is required to report to work a second time in any one workday and is furnished less than two hours of work on the second reporting, he or she must be paid for two hours at his or her regular rate of pay.

California’s Labor Commissioner provides the following example:

[I]f an employee is scheduled to report to work for an eight-hour shift and only works for one hour, the employer is nonetheless obligated to pay the employee four hours of pay at his or her regular rate of pay (one for the hour worked, and three as reporting time pay). Only the one-hour actually worked, however, counts as actual hours worked.

Employers must remember, when an employee is scheduled to work, the minimum two-hour pay requirement applies only if the employee is furnished work for less than half the scheduled time.

Exceptions to the reporting time requirements – “Acts of God”

The Wage Orders provide that employers are not required to pay overtime pay during the following circumstances:

  1. When operations cannot begin or continue due to threats to employees or property, or when civil authorities recommend that work not begin or continue; or
  2. When public utilities fail to supply electricity, water, or gas, or there is a failure in the public utilities or sewer system; or
  3. When the interruption of work is caused by an Act of God or other cause not within the employer’s control, for example, an earthquake or a pandemic such as the coronavirus.

Time paid as reporting time pay does not trigger overtime pay

Reporting time pay for hours in excess of the actual hours worked is not counted as hours worked for purposes of determining overtime.

Is reporting time pay required if an employee voluntarily leaves work early?

Employers are not required to pay reporting time pay if the employee voluntarily leaves work early.  For example, if the employee must leave if they become sick, or must attend to personal issues outside of work and leaves early, then the employer is not obligated to pay reporting time pay (however, this may trigger paid sick leave or other legal obligations for the employer).

Below are some other resources my firm developed to aid employers during the coronavirus epidemic:

Video: Coronavirus: What California Employers Need to Know:

Coronavirus: What California Employers Need to Know

Employer Contingency Plans for Coronavirus:

Employer Contingency Plans for Coronavirus

Guidance on Preparing Workplaces for COVID-19:

Guidance on Preparing Workplaces for COVID-19

OSHA published “Guidance on Preparing Workplaces for COVID-19” to help companies respond to coronavirus in the workplace.  The resources can be downloaded here: https://www.osha.gov/Publications/OSHA3990.pdf

It is a great resource to help employers with planning for steps to take over the next few weeks.

OSHA recommends employers take infection prevention measures, which include:

Develop, Implement, and Communicate about Workplace Flexibilities and Protections

  • Actively encourage sick employees to stay home.
  • Ensure that sick leave policies are flexible and consistent with public health guidance and that employees are aware of these policies.
  • Talk with companies that provide your business with contract or temporary employees about the importance of sick employees staying home and encourage them to develop non-punitive leave policies.
  • Do not require a healthcare provider’s note for employees who are sick with acute respiratory illness to validate their illness or to return to work, as healthcare provider offices and medical facilities may be extremely busy and not able to provide such documentation in a timely way.
  • Maintain flexible policies that permit employees to stay home to care for a sick family member. Employers should be aware that more employees may need to stay at home to care for sick children or other sick family members than is usual.

For more information on how California employers should respond to the coronavirus, our team has recorded a video discussing common questions facing employers, which can be viewed here: https://www.californiaemploymentlawreport.com/2020/03/coronavirus-what-california-employers-need-to-know/

Our prior article on Employer Contingency Plans for Coronavirus can be read here: https://www.californiaemploymentlawreport.com/2020/02/employer-contingency-plans-for-coronavirus/

Attorneys from our firm gathered for this Q&A on Friday, March 13, 2020 to discuss common questions facing California employers with the coronavirus epidemic.  We discuss the following topics:

  • Providing time off for employees due to school closures
  • Dealing with employee’s requests not to work
  • Masks in the workplace
  • Screening employees
  • WARN issues for mass layoffs
  • Wage and hour considerations

Employer Contingency Plans for Coronavirus:
https://www.californiaemploymentlawreport.com/2020/02/employer-contingency-plans-for-coronavirus/

Coronavirus Disease (COVID-19) – FAQs on laws enforced by the California Labor Commissioner’s Office: https://www.dir.ca.gov/dlse/2019-Novel-Coronavirus.htm

City of San Francisco’s FAQ on Paid Sick Leave & The Coronavirus:
https://sfgov.org/olse/san-francisco-paid-sick-leave-coronavirus

 

 

By Michael Thompson

It’s time again for one quick action item you can accomplish to make your business safer than it was yesterday.  Today, we are tackling personnel files. Specifically, we are going to address requests by employees—or, more worrisome, the employee’s attorney—to inspect or receive a copy of the personnel file.

Our goal today is to save you $750 plus attorney’s fees, which represents the liability you potentially face for not timely responding to a personnel records request.

Labor Code section 1198.5 entitles “current and former employees, or his or her representative, the right to inspect and receive a copy of the personnel records that the employer maintains relating to the employee’s performance or to any grievance concerning the employee.” Employers must provide the personnel records within 30 days from the date the employer receives the request.

Frequently, these requests will come from a plaintiff’s attorney. It is potentially the first hint that you may be facing an employment lawsuit in the near future. The plaintiff’s attorney has two primary goals with this request.

First, the attorney may want to see the personnel records to evaluate whether to take the employee’s case.

Second, the attorney is hoping that you will blow that 30-day deadline. The penalty for doing so is $750, and the employee can also recover costs and reasonable attorney’s fees to enforce this right. (These requests will typically also request payroll records under Labor Code section 226, which comes with a separate $750 penalty for non-compliance. In that sense, we’re saving you $1,500 today.)

As if the $750 haircut weren’t bad enough, missing this deadline signals to the plaintiff’s counsel that your company is disorganized, dramatically increasing the likelihood the attorney will take the case.

Thirty days may seem like a long time, but if you are an employer with multiple locations, the request may take days or weeks to filter to the appropriate person (or get ignored entirely by someone unfamiliar with the law). Moreover, because that these requests often are a prelude to a lawsuit, you will want to give serious thought (and legal advice) on what to produce.

So today, you are going to develop and implement a written policy that designates a person or position (maybe you, maybe Human Resources, or maybe the general counsel) to receive these written requests. Subsection (f) of section 1198.5 permits the employer to “designate the person to whom a request is made.”

The designated person or position should be familiar with the requirements of section 1198.5 and have authority to act quickly, either to respond to the request directly or to engage legal counsel. With this policy in place, you can avoid delays in acting on a request, put your best foot forward in response, and keep that $750.

Congrats, you took a concrete step today to protect your business.  See you next week.

As a preview to my Firm’s seminar next Thursday on how to conduct workplace investigations (information and registration is at this link), this Friday’s Five lists five action items employers should utilize when conducting harassment 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.

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

The EEOC provides the following examples of questions to ask during a sexual harassment 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

After making credibility determinations and evaluating the facts, management of the company must make a determination about whether or not the harassment occurred.  The parties should be informed of the determination.  Even if the employer determines that harassment did not occur, the EEOC takes the position that the employer should take steps such as preventative training and continued monitoring.  For example, 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.  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.

By Michael Thompson

You are busy. You’re a small-business owner with a to-do list a mile long. Or maybe you’re a manager or HR professional being pulled in fifteen different directions.

Also, employment law is complex and demanding (especially in California). Even simple things like updating your handbook to address 2020 changes feels like a project that will have to wait for another day.  Or week.  Or 2021.

These two things are a difficult but common combination. The truth is, eliminating all exposure to employment issues is unrealistic. At the very least, it is too much to accomplish in one day.

So let’s talk about one thing you can accomplish today that will put you in a better position than you were yesterday.

Today (right now, actually), you will send an email to all of your employees, but not about outstanding orders or performance benchmarks or happy hour. This email will be about workplace harassment.  And look, it’s already drafted:

All,

I want to take a moment to remind you about an important company policy.

[(Your Company Name) is committed to providing a work environment free of harassment, discrimination, or other unprofessional conduct.  Sexual harassment, or discrimination or harassment on the basis of any category protected by law, will not be tolerated. This policy also applies to customers, vendors, and anyone else who comes into contact with our employees.]  For more information on this policy, please consult the employee handbook or speak with (me/human resources/your supervisor).

If you experience [harassment or discrimination] or witness another employee experience it, you have a duty to immediately bring this information to the attention of (your supervisor). If you do not believe the matter can be discussed with (your supervisor), you can discuss this or any other issue with (me/human resources/the company president). All reports will be investigated promptly and fairly, and the company will protect you from retaliation or punishment for making a complaint or cooperating in an investigation.

Thank you,

Modify the information in (parenthesis) to fit your company and remove the [brackets].  Personalize it as you feel appropriate.

Now, go send it.  We’ll wait.

….

Done? Great. Here is what that email accomplishes: If harassment or discrimination is occurring in the workplace, it is better that you find out now so that you can address it. Or would you rather find out when terminating an employee five months from now? Or getting sued out of the blue three years from now? Frequently, such claims will allege that the conduct occurred over a long period of time. But if the plaintiff receives this email and says nothing, this email will be powerful evidence for your company’s defense of the claim.

Even better, this email is flexible and can be modified to address more than just [harassment or discrimination].  What about [off-clock work]?  Just substitute this into the brackets of the second paragraph:

[(Your Company Name) does not permit non-exempt employees to work “off the clock,” and does not permit any employee to encourage or pressure another employee to do so. You must accurately report all time that you work and may not falsify your time record or that of another employee. You should examine all of your time records and paystubs to ensure you are being properly paid for all of your work.]

The same can be done for [meal and rest breaks].  Or [violations of law].  Or [business expenses].

Take an extra second to set a reminder six months from now to do this again.

Congrats, you took a concrete step today to protect your business.  See you next week.

With the novel coronavirus in the news, I’ve been receiving a few questions from employers about what considerations they should be making now, just in case the virus spreads within California.  I do not want to sound alarmist, and hesitated in writing this article, but the situation is a reminder for employers to have disaster plans in place, especially here in California.  Here are a few considerations that employers could use to begin a contingency plan if the coronavirus spreads in California:

1. Establish a contingency plan

Employers should develop a natural disaster contingency plan.  A natural disaster plan could be drafted to address a broad range of potential threats, and should consider:

  • Who will make the decision on whether employees should be contacted to remain home?
  • Which positions are essential to business operations that must continue during a disaster?
  • Does the company have a method to contact employees about emergencies?
  • Are records easily obtainable on who the employee would like the employer to contact in the case of an emergency?
  • Does the company have emergency kits and basic supplies if employees must remain on the company’s premises after a disaster?

In addition, ensure that managers are trained on what they can and cannot ask about the employee’s medical status and information.  Employers need to be careful that managers and supervisors do not discriminate against employees based on any perceived disabilities, and that they are not asking for private medical information from employees.

Employers can plan for employee’s absences, but they must be careful about the type of information they seek from the employee to make these plans, in order to  avoid any disability related questions.  The EEOC published a sample form that it suggests employers could circulate to plan for anticipated absenteeism in advance of the risk of a pandemic:

ADA-COMPLIANT PRE-PANDEMIC EMPLOYEE SURVEY

Directions: Answer “yes” to the whole question without specifying the factor that applies to you. Simply check “yes” or “no” at the bottom of the page.

In the event of a pandemic, would you be unable to come to work because of any one of the following reasons:

  • If schools or day-care centers were closed, you would need to care for a child;
  • If other services were unavailable, you would need to care for other dependents;
  • If public transport were sporadic or unavailable, you would be unable to travel to work; and/or;
  • If you or a member of your household fall into one of the categories identified by the CDC as being at high risk for serious complications from the pandemic influenza virus, you would be advised by public health authorities not to come to work (e.g., pregnant women; persons with compromised immune systems due to cancer, HIV, history of organ transplant or other medical conditions; persons less than 65 years of age with underlying chronic conditions; or persons over 65).

Answer: YES______ , NO_______

Also see OSHA’s “What Employers Can Do to Protect Workers from Pandemic Influenza.”

OSHA provides specific control and prevention guidance regarding the coronavirus for workers and employers involved in the following industries:

2. Review legal obligations to employees

Employers generally will have to ensure that they are not exposing employees to any known threats, and they must provide reasonable accommodations to employees.

For example, OSHA requires employers to comply with industry-specific safety standards, and its guidance can be helpful in determining what steps employers may need to take when dealing with a natural disaster, such as a pandemic.  OSHA sets forth a general duty obligation on employers, which requires employers to:

  • Keep its workplace free from a hazard
  • The hazard is recognized
  • The hazard was likely to cause death or serious physical harm
  • The hazard could feasibly be corrected.

See 29 U.S.C. § 654(a)(1).

OSHA has not issued any specific standards in regard to pandemics.  However, it did issue a Field Operations Manual in November 2009 (Enforcement Procedures for High to Very High Occupational Exposure Risk to 2009 H1N1 Influenza) setting forth employer’s responsibilities during the H1N1 outbreak in 2009.  In that memo, OSHA provided the following:

At the onset of a pandemic influenza, the knowledge concerning the severity and transmissibility of the virus may be limited and enhanced protection measures may be necessary. As the 2009 H1N1 influenza virus evolves and additional information become available, protective measures may need to be modified based on the updated information from the CDC, state and local government. Therefore, employers will need to adjust their 2009 H1N1 influenza virus plans as new information becomes known.

Also, employers must be careful about disciplining employees who refuse to come into work during a pandemic out of fear of contracting the virus.  Under OSHA, for example, an employer cannot take any actions against an employee who “refuses in good faith to expose himself to the dangerous condition.”  The condition must be one that a “reasonable person, under the circumstances then confronting the employee, would conclude that there is a real danger of death or serious injury and that there is insufficient time, due to the urgency of the situation, to eliminate the danger through regular statutory enforcement channels.”  (29 C.F.R. § 1977.12(b)(2).)

Employers must be careful to avoid any disability discrimination claims.  Employers must provide reasonable accommodations to employees with a disability to perform their essential job functions.  In addition, many state and Federal laws regulate an employer’s ability to require medical examinations and medical information for work purposes.  Addressing some of the issues, the EEOC published a resource in October 2009, Pandemic Preparedness In The Workplace and The Americans With Disabilities Act, for employers outlining Federal legal obligations in response to the H1N1 outbreak.  While the EEOC’s publication is a good overview of Federal law, California employers need to still comply with any California regulations pertaining to disability discrimination and obtaining medical information from employees.

3. California paid sick leave laws

In addition, California employers also would need to plan to provide paid sick leave according to California’s Healthy Workplace Healthy Families Act. If the employees work in any of the various cities or counties in California that provide for paid sick leave, employers would need to comply with those laws.

4. Time off for school emergencies

Labor Code section 230.8 also provides that employers with 25 or more employees working at the same location must permit employees to take time off to address a “school emergency.” A school emergency definition includes when a child cannot remain in school due to “a natural disaster, including, but not limited to, fire, earthquake, or flood.”  Employees are permitted to take up to 40 hours per year to attend to these school emergencies.

5. Employees’ leave to take care of themselves or family members could be protected under various leave laws

Federal Family Medical Leave Act (“FMLA”) and the California Family Rights Act (“CFRA”) provide for an employee’s leave to care for themselves or to care for a family member with a “serious health condition.”  Employers will need to approach this issue carefully as whether a virus constitutes a “serious health condition”, and this would likely need to be an individualized assessment based on the facts of the case.

 

Apple employees sued the employer claiming they are owed unpaid wages for time spent undergoing a search prior to leaving the Apple retail stores.  The issue presented to the California Supreme Court: Is time spent on the employer’s premises waiting for, and undergoing, required exit searches of packages, bags, or personal technology devices voluntarily brought to work purely for personal convenience by employees compensable as “hours worked” within the meaning of Wage Order 7?  In Frlekin v. Apple, Inc., the California Supreme Court held that this time is considered hours worked and needs to be paid by Apple.

The case reached the California Supreme Court at the request of the United State Court of Appeals for the Ninth Circuit, which was reviewing the issue after the district court held that the searches were not compensable.

1. Apple’s policy and Plaintiff’s Complaint

Apple’s mandatory bag search policy states:

Employee Package and Bag Searches

All personal packages and bags must be checked by a manager or security before leaving the store.

General Overview

All employees, including managers and Market Support employees, are subject to personal package and bag searches.  Personal technology must be verified against your Personal Technology Card (see section in this document) during all bag searches.

Failure to comply with this policy may lead to disciplinary action, up to and including termination.

Do

Find a manager or member of the security team (where applicable) to search your bags and packages before leaving the store.

Do Not

Do not leave the store prior to having your personal package or ba[g] searched by a member of management or the security team (where applicable).

Do not have personal packages shipped to the store. In the event that a personal package is in the store, for any reason, a member of management or security (where applicable) must search that package prior to it leaving the store premises.

The employees are required to clock out before submitting to an exit search pursuant to the bag search policy.  There were varying estimates about the amount of time it took employees to go through the screening process.  The employees estimated it lasted from five to 20 minutes, and on busy days the employees estimated they had to wait up to 45 minutes.

The Plaintiffs’ complaint alleges that Apple failed to pay minimum and overtime wages under California law for time spent waiting for and undergoing these exit searches.

2. Definition of “hours worked” under California law

Wage Order 7 requires employers to pay their employees a minimum wage for all “hours worked” (Cal. Code Regs., tit. 8, § 11070, subd. 4(B)), defined as “the time during which an employee is subject to the control of an employer, and includes all the time the employee is suffered or permitted to work, whether or not required to do so” (id., § 11070, subd. 2(G)).

The Court explained that hours worked is determined by these two factors: (1) subject to the control of the employer or (2) if an employee is “suffered or permitted” to work.  Under the first control-factor, the employee does not have to be working during the time for it to be compensable.  Under the second “suffered or permitted” factor, the employee does not have to be under the control of the employer, but if the employer has or should have knowledge of the employee’s work, then it is compensable.

The Court’s decision was interpreting California law, which, as established in the decision provides a more employee friendly definition of what time qualifies as compensable work.  Illustrative of this, the Plaintiffs in the action dismissed all non-California law claims following the United States Supreme Court’s decision in Integrity Staffing Solutions, Inc. v. Busk (2014) 574 U.S. 27, which held that time spent undergoing mandatory security screenings was not compensable under the FLSA.

3. Apple “controlled” the employees during the exit screening

Apple argued that it did not have control over the employees, because it was the employees who made the decision to bring items to work that were subject to search under its policy.

The Court disagreed with Apple, holding that the employees were under the employer’s control while “awaiting, and during, the exit searches.”  The Court explained that Apple controlled employees during this time because:

  • the employees were subject to discipline if they did not follow the search policy,
  • the employees were confined to the premises during the search,
  • the policy required employees to perform certain tasks during the search (such as find a manager or security personnel to perform the search, opening the bag, etc.…).

The Court explained:

It is to be expected that many Apple employees feel they have little genuine choice as a practical matter concerning whether to bring a bag or other receptacle containing such items to work.  Moreover, given that Apple requires its employees to wear Apple-branded apparel while working but directs them to remove or cover up such attire while outside the Apple store, it is reasonable to assume that some employees will carry their work uniform or a change of clothes in a bag in order to comply with Apple’s compulsory dress code policy.  Apple’s proposed rule conditioning compensability on whether an employee can theoretically avoid bringing a bag, purse, or iPhone to work does not offer a workable standard, and certainly not an employee-protective one.  (See Dynamex, supra, 4 Cal.5th at p. 952 [the wage orders are intended to accord workers “a modicum of dignity and self-respect”].)

The Court also disregarded Apple’s argument that the employees had a choice in whether to bring their smartphone to work:

Given the importance of smartphones in modern society, plaintiffs have little true choice in deciding whether to bring their own smartphones to work (and we may safely assume that many Apple employees own Apple products, such as an iPhone).

4. Level of control over employees determines if it is compensable time

The Court relied upon its prior holding in Morillion v. Royal Packing Co. that “[t]he level of the employer’s control over its employees, rather than the mere fact that the employer requires the employees’ activity, is determinative” concerning whether an activity is compensable under the “hours worked” control clause.  The Court explained that whether an activity is required by the employer will still be a factor in making a determination of whether the employee is under the employer’s control.

The Court further explained that in in deciding if certain activities performed on the job site need to be compensated as time worked, other factors must be reviewed as well.  Factors such as the location of the activity, the degree of employer’s control, if the activity benefits the employer or employee, and if the activity is enforced through discipline must be given consideration in addition to whether the activity is required by the employer.

5. The holding applies retroactively

The Court held that its ruling in this case applies retroactively.  The Court disagreed with Apple that the holding did not change an established rule which Apple relied upon.  As such, even if employers modify their current policies to address this holding, there could still be potential liability for past claims.  As such, it is recommended that employers in California review policies that may be impacted by the Frlekin case.