Joint Employer Concerns

Question:  We use a staffing agency to provide workers during busy times throughout the year.  Even though we do not directly hire these employees, I am wondering if we can be held responsible in case one of them files a claim for unpaid wages or gets hurt on the job.  Should I be worried?

Answer: In California there are at least two “joint employer” theories that could impose liability on businesses who contract with staffing agencies or other types of labor contractors.   Under Labor Code 2810.3, certain employers may be jointly liable for wage and hour violations committed by “labor contractors,” such as staffing agencies.  Generally, a business with 25 or more employees that contracts with a staffing agency will share all civil legal responsibility and civil liability for all non-exempt employees supplied by that staffing agency for:

  • The payment of wages; and
  • Failure to secure valid workers’ compensation coverage.

However, joint liability under this law does not apply to:

  • A bona fide nonprofit, community-based organization that provides services to workers;
  • A bona fide labor organization or apprenticeship program or hiring hall operated pursuant to a collective bargaining agreement;
  • A motion picture payroll services company;
  • In certain circumstances, a third party who is a party to an employee leasing arrangement;
  • A homeowner for labor or services received at the home or the owner of a home-based business for labor or services received at the home;
  • Workers who are independent contractors; and
  • Certain motor carriers, household movers, cable operators, and motor clubs.

Labor Code 2810.3 requires an aggrieved employee to provide the business that contracts with the staffing agency at least 30 days’ notice of a claim prior to filing a civil action against the business for violations of this law.

Joint liability for wage and hour violations can also arise when a business exercises direct or indirect control over a worker supplied by an intermediary entity like a staffing agency. California’s Industrial Welfare Commission Wage Orders define an “employer” as “any person . . . who directly or indirectly, or through an agent or any other person, employs or exercises control over the wages, hours, or working conditions of any person.” A September 2021 case, Medina v. Equilon Enterprises, held that joint employment exists when the business exercises enough
control over the intermediary entity to indirectly dictate the wages, hours, or working
conditions of the employee.  In the Medina case, Shell Oil contracted with a Multi-Site Operator (MSO) to run its gas station.   Mr. Medina was an employee of the MSO.  The MSO was responsible for hiring, firing, training, disciplining, and maintaining
payroll records for the MSO employees, and Shell provided “detailed instructions for
compliance with labor laws.” The MSO did not have discretion to modify the tasks
that were performed by employees like Mr. Medina. Based on these facts, the Court held that Shell and the MSO were joint employers who could be liable for Mr. Medina’s unpaid wages because Shell exercised enough control over the intermediary entity to indirectly dictate the wages, hours, or working conditions of Mr. Medina.

Businesses that use intermediary entities to supply workers should be aware of the joint employment risks and specifically address issues such as compliance with California labor laws, workers compensation laws, and indemnity in the written services agreement between the parties.


How Workers’ Compensation Leave Interacts with Family Medical Leave

Question: My employee was injured on the job and filed a workers’ compensation claim. The employee’s doctor states she needs to take a leave of absence.  Is this workers’ compensation leave also a federal Family and Medical Leave Act (“FMLA”) or California Family Rights Act (“CFRA”) type leave?

Answer: The FMLA and CFRA are two laws that provide job-protected leave for various reasons and allow eligible employees to take up to 12 weeks of job protected leave, including for the employee’s own serious health condition. A serious health condition is defined as an illness, injury, impairment or physical or mental condition that involves inpatient care or continuing treatment by a health care provider. If the employee’s injury qualifies as a serious health condition and she is otherwise eligible for FMLA or CFRA, then her workers’ compensation leave should also be designated as a FMLA and/or CFRA leave.

The FMLA applies to any employer who employs 50 or more employees.  CFRA was recently expanded and now applies to employers who employ five or more employees. Given this recent expansion, the CFRA now applies to many more employers in California.

An employee is eligible for leave under the FMLA if the employee 1) has been employed by the employer for at least 12 months, 2) has worked at least 1,250 hours during the 12-month period immediately prior to the leave, and 3) is employed at a worksite where 50 or more employees are employed by the employer within 75 miles of that worksite.

An employee is eligible for leave under the CFRA if the employee has been employed by the employer for at least 12 months and has worked at least 1,250 hours during the 12-month period immediately before the leave begins. CFRA does not have the 75-mile radius requirement found under the FMLA.

If an employee’s workers’ compensation-related injury meets the definition of a serious health condition under the FMLA and/or CFRA, and the employee has worked for you for 12 months or more and worked at least 1,250 hours in the year before the injury, then the employee likely also qualifies for job-protected leave under the FMLA and/or CFRA.  Employers should obtain a CFRA or FMLA certification of health care provider to determine if the employee is eligible for FMLA or CFRA, even if the employer is receiving medical updates from workers’ compensation. The employer should follow its FMLA and/or CFRA procedures and provide written notice regarding the details, obligations, and benefits provided under the applicable FMLA and/or CFRA leave(s) to the employee as soon as possible.

If leave is designated as FMLA and/or CFRA, workers’ compensation leave will run concurrently with both the FMLA and CFRA. If the employee remains disabled after 12 weeks of FMLA or CFRA, the employer normally must provide additional medical leave under the Fair Employment and Housing Act as a reasonable accommodation, unless providing additional leave would create an undue hardship.

Employees who are eligible for FMLA and/or CFRA leave are entitled to continued health benefits during the leave for a maximum of 12 weeks.  Depending on the terms of the health insurance plan, you may offer the employee COBRA continuation coverage if the employee is still unable to return to work after 12 weeks of FMLA or CFRA.

More information about FMLA and CFRA, including the applicable medical certifications, is available at https://www.dol.gov/agencies/whd/fmla and https://www.dfeh.ca.gov/family-medical-pregnancy-leave/


Californians For Fair Pay and Employer Accountability Act

Question:  With election season approaching, are there any ballot initiatives that I, as an employer, should be looking out for and educating myself on?

Answer: Yes.  Several business organizations joined together in October 2021 to file a proposed proposition with the California Attorney General entitled “Californians for Fair Pay and Employer Accountability Act,” which seeks to repeal and replace the Private Attorneys General Act (the “PAGA”).  The PAGA is a law that authorizes individual employees to file lawsuits to recover civil penalties on behalf of themselves, other employees, and the State of California for Labor Code violations.  Since its enactment, the PAGA has been a controversial law that has driven substantial litigation.

The proposed Fair Pay and Employer Accountability Act (the “Act”) would provide California workers and businesses with an alternative mechanism to resolve employment claims without civil lawsuits under the PAGA. Under the Act, rather than allowing individual employees to bring civil claims on behalf of the state, the California Legislature would instead provide additional funding for the Labor Commissioner to enforce Labor Code violations itself.  The Act also proposes that the California Labor Commissioner provide pre-enforcement advice to employers and allow employers to cure alleged Labor Code violations without risk of penalties.  To accomplish this, the Act would create the Consultation and Policy Publication Unit (“CPPU”).  The CPPU would serve as a resource for employers and employees to receive information and report potential violations of law.  Employees would be able to receive information from the CPPU on how to file complaints.  Employers with no pending enforcement action against them would be able to receive a confidential consultation with the CPPU to correct, without penalty, any Labor Code violations within 60 days.  Additionally, if employers are unsure what a particular law requires, or if there is an ambiguity in a law, employers would be able to contact the CPPU to receive advice and assistance.

One primary difference between the Act and the PAGA is how claims settlement proceeds would be distributed.  In settlements under the PAGA, the California Labor and Workforce Development Agency and the plaintiff’s attorney typically each receive a large portion of the settlement proceeds.  Under the Act, Labor Code violations would be adjudicated directly through the Labor Commissioner, without court involvement, and claims proceeds would be distributed primarily to employees involved in alleged Labor Code violations.  The proposed law would also eliminate “stacking,” which refers to the practice of claiming multiple penalties for one substantive Labor Code violation.

California’s Secretary of State approved the circulation of the Act’s petition for signatures.  Supporters of the initiative have until June 6, 2022, to collect at least 623,212 valid signatures to qualify the measure for placement on the ballot in the November 2022 general election.  As of early February 2022, the campaign reported that it had obtained twenty-five percent of the signatures necessary to qualify for placement on the ballot.  Many California organizations have voiced support for the Fair Pay and Employer Accountability Act.  The California Chamber of Commerce, New Car Dealers Association, Western Growers Association, and the California Restaurant Association are sponsors of the ballot initiative.  More information on the ballot initiative can be found at https://stoptheshakedown.com/ and https://cafairpay.com/.


Risks of Failing to Comply With COVID-19 Safety Protocols

Question: I am worried about getting sued if one of my employees gets COVID-19 at work and infects a family member. I take all the recommended safety precautions, but I cannot guarantee that my employees’ family members will not get COVID-19. What can a business owner do to protect its business from these claims?

Answer:  The COVID-19 pandemic is generating litigation and creating novel legal theories, including lawsuits by family members alleging they contracted COVID-19 from employees. Currently, workers compensation benefits are available to employees who test positive for COVID-19 or are diagnosed with COVID-19 within 14 days after the employee worked on the business premises, unless evidence shows the employee contracted COVID-19 outside of work. The Workers Compensation Act is designed to streamline payments to injured employees and limit employer liability for workplace illnesses and injuries. Work-related illnesses and injuries are covered exclusively by workers’ compensation, as are family members’ injuries that are “derivative” of the employee’s illness or injury.

In one May 2021 case, the U.S. District Court for the Northern District of California found that a woman’s severe illness from COVID-19, which she contracted from an infection her husband suffered at work, was exclusively covered by the employer’s workers compensation coverage, and the woman could not sue the employer in court for the employer’s negligence.

However, the California Court of Appeal recently reached a different conclusion in the case of See’s Candy v. Superior Court. In the See’s case, an employee claimed she and other coworkers became ill with COVID-19 because of unsafe working conditions. The employee recuperated at home and her husband and daughter took care of her, and both also contracted COVID-19. The employee’s husband died from COVID-19.  The widow sued See’s Candies, alleging that it caused her husband’s death by negligently failing to implement appropriate COVID-19 safety standards. See’s Candies argued that the widow’s exclusive remedy for the loss of her husband was workers' compensation because her husband’s illness and subsequent death were “derivative” of the widow’s illness.

The court disagreed and distinguished the See’s case from other “derivative injury” cases because of the unique nature of COVID-19. The Court observed that infected people can transmit COVID-19 before demonstrating any symptoms, and the widow could have felt healthy when she infected her husband. The Court reasoned it was possible the widow did not have a work-related illness or injury when she infected her husband and therefore workers compensation was not the exclusive remedy for her husband’s death. The case was allowed to proceed to trial.

The See’s case demonstrates the importance of following COVID-19 safety protocols, even though COVID-19 case rates are declining. Although these cases involve claims by employees’ family members, it is expected this trend will expand to include civil lawsuits by customers and other third parties. To defend such claims, businesses will need to be able to prove they exercised reasonable, ordinary care to prevent exposure to COVID-19. In addition, an assumption of the risk defense may be available if a business can show that the risk of contracting COVID-19 was not created by the business’ negligence but was inherent given the prevalence and high contagiousness of the COVID-19 virus. Following local, state, and federal COVID-19 safety standards will help reduce the risk of liability of business owners.


New Minimum Wage

Question: As business is increasing, I am starting to hire additional employees.  I now have over 20 part time and full-time employees. I am aware that the minimum wage in California has increased.  What is the minimum wage I should be paying my employees this year?

Answer:  On January 1, 2022, the state minimum wage increased, and the rate depends on the number of employees you have.  If you have 25 or fewer employees, then the minimum wage is $14.00 per hour.  If you have 26 or more employees, the minimum wage is $15.00 per hour.  If at any during the year you have more than 25 employees, then you will have to increase the minimum wage paid to your non-exempt employees to $15.00 an hour.  Similarly, if the workforce decreases below 26 employees, then the minimum wage rate paid to the non-exempt employees can be lowered to $14.00 an hour because the workforce has fallen below the 26 employee threshold.  However, before paying a different minimum wage rate based on a change in your workforce size, you must notify the affected employees in writing and in advance as required by the California Labor Code. The California Department of Industrial Relations (“DIR”) publishes a notice that complies with the requirements of Labor Code section 2810.5. This “Notice to Employee” can be downloaded at https://www.dir.ca.gov/dlse/LC_2810.5_Notice.pdf.

Also, on January 1, 2022, the minimum salary for exempt employees also increased, which means if you employ exempt employees, you must pay them at least two times the state minimum wage for full-time employment.  For employers with 25 or fewer employees, the exempt employee minimum salary is $58,240 a year.  For employers with 26 or more employees, the exempt employee minimum salary is $62,400 a year. Some exceptions apply to the new minimum salary requirements for exempt employees. Exempt computer professionals must be paid a minimum of $50 per hour, $8,679.16 per month, or $104,149.81 annually.  Licensed physicians and surgeons must be paid a minimum of $91.07 per hour.

You will be required to pay a higher minimum wage if your city or county has adopted a higher minimum wage ordinance than California state required minimum.  When there is a conflict between federal (the federal minimum wage is currently $7.25 an hour), state, and local ordinances regarding the minimum wage rate, and an employer employs individuals in a city or county that has a minimum wage ordinance, employers must pay the highest applicable minimum wage.  If you are unsure if the city or county in which you employ individuals has a minimum wage ordinance, you should contact an employment law attorney or human resource professional.   Employers can also look up city and county minimum wage ordinances by visiting https://laborcenter.berkeley.edu/inventory-of-us-city-and-county-minimum-wage-ordinances/ to find a list of minimum wage ordinances kept by the UC Berkely Labor Center.

California law also requires all employers to comply with California’s workplace posting requirements to post information related to working conditions and wages in an area frequented by employees, including minimum wage rates.  Employers can download the required workplace posting from the DIR’s website, including the minimum wage poster at https://www.dir.ca.gov/wpnodb.html   Employers may now also distribute this information to employees by email with the documents attached. However, emailing the required notices does not relieve the employer’s obligation to continue to physically post the required notices.


Workplace Use of Smartphone Applications

Question:  My business was approached by a company proposing we use one of their new smartphone applications to allow employees to clock in and out for work, communicate about schedules, address work-related questions, and provide employees access to company-related resources. Are there any issues with asking my employees to download applications on their cell phones to use to record time and communicate about business related matters?

Answer:  From the advent of the office personal computer in the 1980’s, and the Internet in the 1990’s, businesses have often looked at technology as a resource to assist employees in performing their work. Many employers are using software applications that allow their employees to access company technology resources in the office and remotely. The COVID-19 pandemic has accelerated the use of applications and other remote resources, blurring the traditional lines of how and where employees can complete work.

Some of these innovative applications go beyond teleconference features (e.g., Zoom, RingCentral), and offer workplace message/collaboration features (Slack, WhatsApp, Outlook etc.), shared access to files (e.g., DropBox), and timekeeping (Buddy Punch, Hubstaff and others). While employees may find these easy-to-use applications convenient, there are some legal considerations that should be evaluated, including:

  1. Off-the-clock work: This occurs when a non-exempt employee performs work away from the office and does not record this work time. When non-exempt employees use their cell phones to check email, answer calls, or communicate on workplace issues, this time is considered “hours worked” under California law and must be compensated even if these tasks are done outside of the workplace or a normal work schedule.
  2. Interruption of meal or rest periods. If an employee takes a call or uses a work application while on a meal or rest period, this may hamper the employee’s ability to take an uninterrupted, off duty rest or meal period. Employees should be advised not to answer calls or perform any work during their meal and rest periods.
  3. Harassment and Privacy Issues. Employers need to make sure that employees do not misuse workplace applications to engage in inappropriate contact with one another. Employers should also put appropriate safeguards in place to protect confidential and proprietary information. Private personnel information such as employee medical information and leave requests should not be on shared applications that are accessible by co-workers.
  4. Expense reimbursement. When employees use their personal cell phones for work-related tasks, Cal. Labor Code section 2802 requires the employer to reimburse for the costs associated with that cell-phone use. This is true even if the personal cell phone is rarely used for work purposes. One simple way to accomplish this is to pay a reasonable fixed sum per month as a cell phone reimbursement.
  5. Maintaining employment records. California law requires employers to retain personnel and pay records for a minimum of four years. Employers need to be able to retain and produce timekeeping documents that are recorded on a cell phone application.

As the use of technology in the workplace continues to evolve, employers need to ensure employees are properly compensated, keep accurate pay records, and safeguard business related information. If your company decides to use smartphone software applications, it is prudent to adopt written policies to define appropriate use of the applications and provide training for employees to effectively use the applications.


Deadline Approaching for Small Employer Compliance with CalSavers Program

Question: My business has 8 employees. Am I required to participate in the CalSavers Program?

Answer:  California law requires certain employers to either offer their own retirement plan or participate in CalSavers, a retirement savings program for private sector workers whose employers do not offer a retirement plan. All California employers with five or more employees must participate in the CalSavers Program (“CalSavers”), unless the employer already has an employer sponsored retirement program. The deadline for businesses with 5-49 employees to sign up and begin the enrollment process is June 30, 2022.

CalSavers is funded completely by employee payroll deductions. To satisfy the CalSavers requirements, employers must first enroll on the CalSavers site and create an account.

After an account is created, employers must take the following steps:

  1. Designate Delegate: The employer must designate someone to be the point person to facilitate the CalSavers account and the employer’s ongoing responsibilities. The delegate is usually a Human Resources or Business Operations Manager but can be anyone the employer wishes to designate.
  2. Add Employees: The employer’s main obligation is to provide CalSavers with eligible employee information, including name, social security number, and address. This is accomplished by completing and uploading an employee roster, which must be completed within 30 days of the employer’s CalSavers registration. CalSavers defines “eligible employees” as employees who are at least age 18, are properly classified as employees under California law, and receive a Form W2 with California wages. The employer will receive an enrollment package, which must be forwarded to employees within 30 days of registration. Employers are required to provide employee information to CalSavers even if an employee informs the employer that the employee does not want to participate in CalSavers.
  3. Opting Out: The program is an automatic enrollment program, meaning the employer is required to give all employee information to CalSavers, and CalSavers enrolls the employees. CalSavers then contacts the employees directly with information on the program. Individual employees may take steps to opt-out and must opt out directly with CalSavers if they do not want to participate.
  4. Contributions:  Participating employees elect how much they want to contribute to their individual CalSavers account. Employers them deduct the contribution from the employee’s pay and remit the contributions within seven days of taking the deduction out of the participating employee’s paycheck. Employers will have access to the contribution amount specified by each participating employee on the employer’s CalSavers account.
  5. Ongoing Obligations: After this initial process, in addition to continuing to deduct and remit the contributions of all participating employees, employers are required to add new employees to the employer account or remove employees who have left the employer’s company. Employees opt-out or opt in at any time, and employee information may need to be updated to reflect employees’ participation status. The employee roster must be updated annually.

Employers are not responsible for enrolling employees, answering questions, or providing advice on deductions or investments. In all communications with employees about the CalSavers program, employers must remain neutral, meaning no communication should sway employees to participate or to opt-out.

Substantial penalties are assessed against employers for noncompliance. Although the enrollment deadline for small employers is June 30, 2022, employers should begin the process as soon as possible. The site to begin enrollment is: https://employer.calsavers.com/californiaertpl/enroll/createEmp/viewCollectEmpPreRegDetails.cs?request_locale=en_US.


Tips for Drafting Preemployment Offer Letters

Question:

Looking forward to 2022, I anticipate hiring more employees and am curious what to include in our offer letter to potential new employees?

Answer:

Offer letters are a valuable way to inform a potential new employee about their new job and the conditions of employment.  A properly written offer letter can minimize later misunderstandings about the nature of the job.  The pre-employment offer letter should include specific details about 1) the job duties and schedule, 2) compensation, 3) at-will employment status, and 4) any pre-employment conditions that apply to the offer.

The pre-employment offer letter should include details about the job title, the general work schedule, and anticipated starting date.   For example, indicating that the job will primarily have an overnight work schedule allows potential employees to consider their willingness to work that schedule and avoid misunderstandings about scheduling expectations.  Given the COVID-19 pandemic, you may also want to identify whether the work is remote, in the office, or a mix of both. Attaching an accurate job description is recommended.

Next, the pre-employment offer letter should set forth the pay rate and benefits, and whether the position is exempt or nonexempt.  This informs the potential employee the extent to which state and federal employment laws will apply to the job.  This classification may impact issues such as overtime and meal and rest breaks. Given the importance of this classification, consult with counsel if you have questions about the exempt or nonexempt classification of a position. The pay rate is most frequently indicated as an hourly rate or annual salary.  It is important to maintain consistency in the pre-employment offer letter, so if the compensation is an hourly rate, then state the hourly rate instead of an estimate of the annual compensation.

Indicate whether the position is full- or part- time, and generally the number of hours the candidate can expect to work each week.  This classification is important for indicating the potential benefits available to an employee.  For instance, part-time employees are often ineligible for benefits such as insurance and accrued vacation.

Employment in California is generally considered at-will, meaning the employee or the employer may end the employment relationship at any time, with or without cause.  If the position is at-will, then it is important to explicitly state it is an at-will position and include the explanation of at-will status so there is no confusion about a promise of continued employment.

The pre-employment offer letter should also indicate any conditions placed upon the job offer.  For example, California recently enacted the Fair Chance Act which prohibits employers from inquiring about an applicant’s criminal history until after a conditional employment offer.  Use the pre-employment offer letter to set forth all of the applicable conditions that must be satisfied before employment begins, such as passing a post-offer medical exam, a post-offer drug test, or post-offer reference and/or background check.

Finally, include a deadline for the individual to accept the job offer by returning a signed copy of the offer letter, and indicate that the offer will be considered withdrawn if not accepted by the deadline.  You should include at the end of the letter an acknowledgment and acceptance for the job candidate to sign showing an understanding of and acceptance of the offer.  Properly drafted offer letters can help start the employment relationship with a new employee on the right path.


Shareholder Announcement

Fenton & Keller is pleased to announce that effective January 1, 2022

Derric G. Oliver

has become a Shareholder and Director of the Firm

Derric’s practice focuses on land use, real estate, and civil
litigation, including construction contracts and neighbor
disputes. Derric advises clients on a variety of matters, including
coastal zone development, easements, CEQA, water rights, and
real property title matters such as quiet title actions and
pre-purchase due diligence investigations.

AA San Diego native, Derric has called the Monterey Peninsula
“home” for 15 years; first in Big Sur, now in Carmel Valley with
his wife and two children. Derric currently serves as Board
President of the Big Sur Health Center.

[READ FULL BIO]


COVID-19 Workplace Rules for 2022

Question:  I run a small business, and we are complying with the new state mask order.  Are there other COVID-19 workplace guidelines that are still in effect for 2022?

Answer: Yes.  Employers must continue to comply with the Cal/OSHA COVID-19 Prevention Emergency Temporary Standards (the “COVID-19 ETS”).  On December 16, 2021, the Occupational Safety and Health Standards Board revised the COVID-19 ETS for the second time. The revised COVID-19 ETS apply to most workers in California and take effect on January 14, 2022.  The most significant revisions include the following:

  • Face Coverings: The definition of a “face covering” is updated to include more detail on the different types of acceptable face coverings.  If an employee is exempt from wearing a face covering because of a medical condition and cannot wear an approved alternative, the employee must stay at least 6 feet apart from others and either be fully vaccinated or be tested for COVID-19 at least once per week.
  • Testing and Exclusion: Under the current rules, if a fully vaccinated employee has a “close contact” with an infected person at work, the employee does not need to quarantine unless the employee develops COVID-19 symptoms.  The revised ETS imposes additional requirements on fully vaccinated employees who are asymptomatic. Such employees can  remain at work after a “close contact,” but they must maintain 6 feet of distance from others and wear a face covering for 14 days after their last close contact.  Also, employers are now required to offer COVID-19 testing to “close contacts” regardless of vaccination status and regardless of whether the employee is symptomatic or not.  “Close contact” continues to be defined as “being within 6 feet of a COVID-19 case for a cumulative total of 15 minutes or greater in any 24-hour period within or overlapping with the high risk exposure period.”
  • Return to Work Criteria: The revised ETS expands the period of time before an employee can return to work after a “close contact” from 10 days to 14 days.  However, even under the revised ETS, employees can return sooner in some situations.  For example, an employee can return to work 7 days after the last close contact if the employee has a negative COVID-19 test that was taken at least 5 days after the close contact.  If the employee returns to work sooner than the 14-day quarantine period, the employee must maintain 6 feet of distance from others at work and wear a face covering for at least 14 days following the last date of close contact.

Some important requirements in the COVID-19 ETS remain unchanged.  Employers must continue to maintain an effective COVID-19 Prevention Program that includes identifying and evaluating employee exposures to COVID-19 health hazards, training employees on how to prevent hazards, and implementing procedures to correct unsafe conditions.  Also, employers must continue to properly notify certain employees of possible COVID-19 exposures within one business day.

In addition to the COVID-19 ETS, employers must continue to follow various federal and state public health orders on COVID-19.  The latest order from the California Department of Public Health requires the use of face coverings by all employees when indoors, from December 15, 2021 through January 15, 2022.  Also, there are still numerous federal and state vaccination mandates with which employers may need to comply.

Businesses should promptly review and update their written COVID-19 Prevention Plan to comply with the revised ETS and continue to monitor changing mandates related to COVID-19.  To view the revised ETS, visit: https://www.dir.ca.gov/OSHSB/documents/Dec162021-COVID-19-Prevention-Emergency-txtcourtesy-2nd-Readoption.pdf


Legal Considerations for Holiday Merriment

Question: This year, my company would like to celebrate the holidays by hosting a holiday party for our employees and their families – just like we did prior to 2020. Is that an option this year?

Answer: The widespread availability of COVID-19 vaccines has certainly given us reason to feel festive and ready to interact with coworkers in person once more, and many local employers have decided to celebrate their employees, and the season, with in-person gatherings. There are some precautions you can take to ensure a safe and festive holiday party and minimize the risk of exposure to COVID-19 – not to mention the usual concerns of minimizing the risk of harassment and discrimination claims at holiday parties.

While last year’s parties were almost exclusively virtual, declining COVID-19 cases, rising vaccination rates, and the arrival of booster shots are allowing for more in-person gatherings this year. In evaluating whether an in-person holiday party is appropriate this year, employers should include a risk assessment of COVID-19 in the workplace and identify the controls needed to reduce the risk. The Centers for Disease Control (“CDC”) has issued guidance for organizing events and gatherings to assist employers in their decision. Employers should consider whether to hold an indoor or outdoor event, whether to require masks indoors, and whether to require proof of vaccination status.

Whatever safety precautions you may plan to require of your employees, precautions you can take with their family members, with whom you have no legal relationship, are far less straightforward. Many employers mandate their employees receive the COVID-19 vaccine, but employees’ family members may not be vaccinated. Employers will need to decide whether to require proof of vaccination status to attend an event, and should establish clear protocols to distribute to employees prior to the party. In general, outdoor events are safer for larger gatherings, but this may be a year for limiting the holiday party to your employees.

Another consideration is that with the cancellation of last holiday season’s parties, some employees may be feeling more jolly than usual at an in-person gathering – especially if alcohol is served. A common issue at holiday parties that may lead to liability for harassment is the consumption of too much alcohol, which results in decreased inhibitions and increased risk of offensive or unlawful conduct. To avoid such consequences, employers may decide to avoid serving alcohol, or limit the number of drinks by providing one or two drink tickets to employees and guests. Employers may also designate an exempt manager to discreetly observe the behavior of employees and guests to make sure everyone is having a fun and safe party experience.

Employers should also be sensitive to potential religious harassment or discrimination at holiday parties. Employees may be from different cultural or religious backgrounds that do not celebrate the same holidays, or do not celebrate the holidays the same way. To make all feel welcome, avoid decorations, greetings, or toasts that are religious, and offer different menu and drink options for guests who do not eat or drink certain foods for cultural or religious reasons.

No matter what you decide to do, remember that many employer sponsored holiday parties take place each year without incident. If you decide to host a party, make sure your employee handbook, harassment policies, and COVID-19 protocols are up-to-date and that all employees adhere to your policies.  Then enjoy the celebration with your staff.


Hybrid Work Models and Virtual Meetings

Question:  Our office has re-opened, and some of our employees who were working remotely want to continue to do so all or part of the time.  What are the legal implications of a worksite with employees working remotely and on-site?

Answer:  A December 2020 Pew Research Center study found that after the pandemic started in the U.S. in March 2020, approximately 70% of employees worked remotely. A September Gallup update of employment trends showed that now, approximately 45% of full-time U.S. employees work remotely either all (25%) or part of the time (20%).  It also showed that 70% of employees working a hybrid model, splitting their time between working at home and in the office, prefer to keep that schedule.  This major shift presents challenges for employers who must balance their desire to return to “business as usual,” their employees’ needs, and the continuing risks posed by COVID-19.

Legal and Safety Considerations

Employers who allow employees to work a hybrid model must comply with laws for both remote and on-site workplaces. For example, in California, for employees working on-site, employers must follow the COVID-19 Prevention Emergency Temporary Standards, which address issues such as when face coverings must be worn, responding to cases of COVID-19 in the workplace, and reporting requirements.  To further complicate matters, some counties and cities have their own COVID-19 related ordinances.  Employers must ensure that all employees working on-site, full or part time, follow these rules when working on-site.

For employees working any time remotely, employers must address telecommuting issues such as timekeeping, meal and rest breaks, remote workspace safety, attendance, confidentiality, and protection of company property, networks, and data.  Employers should have a well-defined remote work/telecommuting policy that addresses these issues. The policy should also address privacy issues, such as recording virtual meetings. In California, it is a crime to record a “confidential communication,” including a private conversation or telephone call, unless all parties to the conversation consent.  The remote work policy should clearly convey that when working remotely, employees must continue to comply with all workplace policies.

If employees are reluctant to return to the workplace due to concerns about in-person meetings, an employer can provide employees with the option of attending in-person, with masks if they so choose or if current regulations require them, or via videoconference from their office. Because COVID-19 workplace safety requirements for business owners are constantly changing, a workplace that integrates physical spaces with videoconference technology can more easily adapt to the changing safety rules, while still allowing employees to work in the office.

Recruiting 

Employers are also rethinking the job interview process, and many have successfully adapted to virtual recruiting.  This transition by employers to a hiring process that combines virtual and in-person interviews is likely a permanent change due to the cost and time savings to employers and applicants. Virtual interviews save applicants the travel time and expenses, and give employers more flexibility in scheduling and a larger applicant pool.

An employer’s virtual interviewing practices must comply with federal and state employment and discrimination laws. As such, employers should always remain flexible and provide applicants with the option of an in-person interview if preferred.

The COVID-19 pandemic has changed traditional ideas of work.  While adapting to this new world, employers must continue to be aware of legal implications and the need to have policies that they and employees can follow.