News & Events

Workplace Investigations and Confidentiality

by Sara Boyns

January 16, 2020

Question:  I just completed a workplace investigation. Unfortunately during the investigation there was a lot of discussion and gossip about the investigation, which had a negative impact on the investigation and my employees.  I am considering implementing a policy that prohibits employees from discussing workplace investigations with anyone other than the investigator, and establishes disciplinary action for violations.  Is this permissible?

Answer:  California law requires employers to promptly investigate employee claims of unlawful workplace harassment, discrimination, and other employee misconduct.  Employers are required to keep such investigations confidential to the extent possible.  Most workplace investigators will tell you that employees feel more comfortable disclosing truthful information when they know their statements are confidential.  Thus it would seem that a policy like the one you propose would be appropriate.

However, in recent years the National Labor Relations Board (the “Board”) has ruled that blanket confidentiality policies that prohibit employees from discussing investigations of employee misconduct act to “chill” employees’ rights under Section 7 of the National Labor Relations Act (the “Act”).  Section 7 of the Act applies to union and non-union employees and provides employees "the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection," as well as the right "to refrain from any or all such activities.”  In its 2015 Banner Estrella opinion, the Board found that mandatory confidentiality policies and instructions restricted employees’ exercise of their Section 7 rights, and placed the burden on the employer to demonstrate, on a case-by-case basis, that the need for confidentiality outweighed employees’ Section 7 rights.

On December 16, 2019 the Board issued a decision in Apogee Retail LLC d/b/a Unique Thrift Store, stating the rule in Banner Estrella was “deficient” and was overruled.  In Apogee Retail, an employer maintained two confidentiality rules regarding workplace investigations.  The first rule required employees to “cooperate fully in investigations and answer any questions truthfully and to the best of their ability,” and that both reporting persons and interviewees were “expected to maintain confidentiality.”  The second rule provided for disciplinary action when employees engaged in unauthorized discussions with other employees about the investigations.

The Apogee Retail opinion states that rules requiring confidentiality during open, active workplace investigations are presumptively lawful.  However, confidentiality policies that are not limited on their face to open investigations, i.e., apply post-investigation, require a case-by-case analysis of their impact on employees’ Section 7 rights.  This decision is ultimately a win for employers.  It is important to keep workplace investigations confidential.  Doing so allows the employer greater access to information by minimizing employee fear of reprisal from coworkers for participating in the investigation, and makes it easier to maintain the integrity of a workplace investigation.

So what does the Board’s decision mean for your proposed policy? The Apogee Retail ruling means your policy is likely lawful, as long as your confidentiality rules only apply during open and active workplace investigations.    However, if you intend to enforce the confidentiality policy after the close of an investigation, you will need to analyze each investigation and be prepared to prove that the legitimate business reasons for requiring confidentiality post-investigation outweigh any adverse impact on employees’ Section 7 rights to discuss their wages, hours and working conditions.

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Is Gluten Sensitivity a Disability?

by Sara Boyns

January 10, 2020

Question: I am a restaurant owner and we have seen an increasing number of guests with gluten sensitivity.  We offer gluten-free options on our menu to accommodate these guests.  Does that meet our legal obligations?

Answer:  In a recent federal case, the U.S. Court of Appeals found that gluten sensitivity may be a disability under the Americans with Disabilities Act (ADA).

The U.S. Congress enacted the ADA to remedy discrimination against disabled individuals and provide clear, enforceable standards addressing such discrimination. Title III of the ADA provides that no individual shall be discriminated against on the basis of his or her disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation. The ADA similarly prohibits employment discrimination on the basis of workers’ disabilities.

In J.D. v. Colonial Williamsburg Foundation the Court of Appeals found that a restaurant violated the ADA when its staff refused to allow a gluten-sensitive child – who was on a school trip with his class – to eat his home-prepared gluten-free meal inside the restaurant because the restaurant’s policy banned the consumption of outside prepared food in the restaurant. Instead, the restaurant manager gave the child three options: 1) Let the chef prepare a gluten-free meal; 2) Eat his pre-prepared meal off of the restaurant property; or 3) Stay inside the restaurant with his class and not eat.

The restaurant was sued and requested that the lawsuit be dismissed arguing it was following health and safety codes that prohibited outside food from being consumed inside the restaurant, that if offered to prepare a gluten-free meal, and that gluten sensitivity is not a disability.

The ADA defines a “disability” as “a physical or mental impairment that substantially limits one or more major life activities.”  In analyzing whether gluten sensitivity is a disability, the court emphasized that the only medically accepted treatment for the condition is a strict gluten-free diet, that eating is a major life activity and, as such, that gluten sensitivity could be considered a disability.

The court then looked at whether the restaurant’s actions constituted discrimination.  Discrimination under the ADA occurs when there is a failure to make reasonable modifications in policies, practices, or procedures when such modifications are necessary for a business to afford its goods, services, or privileges, to an individual. Businesses must contemplate three inquiries when determining whether to accommodate an individual:

1. Is the requested modification "necessary" for the disabled individual;
2. Is it "reasonable"; and
3. Would it "fundamentally alter the nature" of the business’ services.

In its analysis, the court noted that the child had regularly gotten sick from “gluten-free” food prepared by restaurant kitchens.  Additionally, this restaurant had previously made exceptions to its rule prohibiting outside food.  The court held that, arguably, bringing a gluten-free meal into the restaurant was necessary for the child; the request was reasonable since it cost nothing to the restaurant; and it could be argued that allowing him to eat the gluten-free meal in the restaurant did not alter the nature of the restaurant’s services.  The Court of Appeals sent the case back to the trial court for further proceedings.

This case highlights that when faced with a customer or employee requesting an accommodation for a disability, it is important for a business to analyze each request on a case-by-case basis.

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Employee Handbook Alert – New Law Requires Employers to Develop & Implement a Lactation Accommodation Policy

by Sara Boyns

November 20, 2019

Question: Are there any new employment laws that will require me to revise my Employee Handbook in 2020?

Answer: Yes.

One of these new laws is Senate Bill (SB) 142, which expands lactation accommodation requirements for employees who wish to express breast milk during the work day.   This new law applies to all employers. There are two major implications for California employers. First, all employers are required to develop and implement a lactation accommodation policy.  Second, employees are permitted to take a “reasonable amount” of break time to express milk.  Employers who have existing lactation accommodation policies in their employee handbooks will need to revise them, and employers who do not have a lactation accommodation policy will need to develop and implement one.

SB 142 requires the employer to provide a lactation room close to the employee’s work area, shielded from view and free from intrusion, safe, clean, and free of toxic or hazardous materials.  The lactation room cannot be a bathroom. The lactation room must contain seating, a surface to place a breast pump and other personal items, and access to electricity or alternative power devices.  The employer must provide access to a sink with running water and a refrigerator or other cooling device suitable for the employee to store breast milk close to the employee’s workspace.

Where a multipurpose room is used for lactation, among other uses, the use of the room for lactation shall take precedence over the other uses, but only for the time it is in use for lactation purposes. Employers may designate a lactation location that is temporary due to operational, financial, or space limitations.  Employers in a multitenant building or multiemployer worksite may comply with the law by providing a space shared among multiple employers within the building or worksite if the employer cannot provide a lactation location within the employer’s own workspace.

The employer’s lactation accommodation policy must contain the following:

• A statement about an employee’s right to request lactation accommodation.
• The process by which the employee makes the request.
• An employer’s obligation to respond to the request.
• A statement about an employee’s right to file a complaint with the Labor Commissioner for any violation of the lactation accommodation law.

There are special provisions for agricultural employers.  Additionally, employers with fewer than 50 employees may apply for an exemption from one or more of the requirements if it can demonstrate that a requirement would impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business. However, even if an exemption is granted the employer must still make reasonable efforts to provide the employee with the use of a room or other location, other than a toilet stall, in close proximity to the employee’s work area, for the employee to express milk in private.

The penalties for non-compliance are significant. Denial of reasonable break time or failure to provide adequate space to express milk will now be deemed a failure to provide a rest period in accordance with state law. The Labor Commissioner may assess civil penalties.

The text of this new law is available on the Legislature’s website at https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200SB142.  Be sure to update your employee handbook with this important new policy and comply with the lactation accommodation requirements.

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AB-1482: The So-Called “Tenant Protection Act of 2019”

by Tyler Moran

November 19, 2019

Article by Tyler Moran

Governor Newsom recently signed a bill which has the potential to change the entire landscape of landlord-tenant law.  In an attempt to make housing in the state more affordable, AB-1482 instead created an incentive for all California landlords to raise rental rates an average of 7% per year, every year, regardless of changes in market value.

The bill consists of two parts: the “rent cap” requirement, and the “just cause” requirement, and mandates that notice be added to all leases informing tenants of these requirements.

The Rent Cap Requirement

Rental rates on residential real property cannot be raised annually more than 5%, plus inflation, up to a maximum of 10%.  The cap only applies to existing tenants over a 12-month period, and is not applicable if the tenancy is terminated and a new tenant moves in.  This portion of the bill is retroactive, and applies to all rental increases since March 15, 2019.  Though meant to keep rental rates affordable, it is likely that landlords will now raise their rates to the statutory maximum every year out of fear of falling behind.  If rental rates are allowed to stay stagnant, and market values suddenly increase sharply, property owners will no longer have the ability to make up the difference by raising rents above the cap.

There are several exemptions to the rent cap listed in the statute.  Two of the most important exemptions are for “housing that has been issued a certificate of occupancy within the previous 15 years” and “residential real property that is alienable separate from the title to any other dwelling unit.”  The first exemption provides that newly constructed properties are exempt for 15 years from the date they receive their certificate of occupancy.  This is a rolling date.  The legislature hopes this will avoid hindering new development.  The second exemption allows for single-family residences and condominiums which do not share title with other dwellings to be exempt so long as the owner is not a real estate investment trust (REIT), a corporation, or an LLC in which a member is a corporation.

The Just Cause Requirement

After a tenant has lawfully occupied a residence for 12 months, a landlord may not terminate the tenancy without just cause.  This is to prevent landlords from evicting tenants simply to avoid the rent cap requirement.  According to the bill, there are two types of just cause: at-fault, and no-fault.

At-fault just cause occurs when the tenant’s actions are the justification for termination.  The bill specifically enumerates what constitutes just cause, and includes: non-payment of rent, breach of a material term in the lease, committing nuisance, and other disruptive or illegal behavior.

No-fault just cause occurs when the landlord’s actions lead to the termination.  Again, the bill specifies what constitutes no-fault just cause.  These include intent to occupy the property by the owner or the owner’s family, withdrawal of the residential real property from the rental market, and intent to demolish or substantially remodel the property.  To terminate a tenancy for no-fault just cause, the landlord must compensate the tenant for the inconvenience of moving.  This may be accomplished by either providing direct payment for relocation assistance equal to one month’s rent, or waiving in writing the final month of rent.

This is likely to be the most litigated section of the new bill.  There is no specified time for how long an owner needs to occupy a unit, or for how long a unit needs to be off the rental market in order to satisfy this requirement.  This leaves a big loophole for landlords to evict tenants by moving in temporarily or by removing the unit from the market for a short period of time in order to increase rent on the next tenant.  As long as landlords are willing to forego rent for the last month of a tenant’s term, this loophole may arguably allow them to avoid the rent cap altogether.

There are several types of properties exempt from the just cause requirement, including single-family homes and condominiums (subject to the ownership requirements previously mentioned) and certain owner-occupied rental units.

Notice Requirement

Another important change to current law is the notice required for termination of a tenancy.  A “3-day notice to cure or quit” is no longer acceptable.  If a landlord wishes to terminate a tenancy due to a curable violation of the lease, the landlord must deliver a 3-day notice to cure.  If the violation is not cured within that time period, then the landlord can deliver a 3-day notice to quit without an opportunity to cure.

For more information you can read the text of the bill here: https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200AB1482

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