(323) 652-9451(805) 845-1752
(323) 652-9451The Law Offices of Alex Craigie is excited to announce that Alex Craigie has been selected by Thomson Reuters for inclusion in the 2022 Southern California SuperLawyers for Employment Litigation.
Super Lawyers selects attorneys using a multiphase selection process. Peer nominations and evaluations are combined with independent research. Each candidate is evaluated on 12 indicators of peer recognition and professional achievement. Selections are made on an annual, state-by-state basis. The objective is to create a credible, comprehensive and diverse listing of outstanding attorneys that can be used as a resource for attorneys and consumers searching for legal counsel. Only 5% of attorneys in Southern California receive this distinction.
Alex Craigie is a trial lawyer recognized for his innovative, cost-effective and, where necessary, highly aggressive approach to Employment dispute advocacy. After 10 years as a Partner at a leading national law firm, Alex launched his own practice in 2014 with the aim of using the skills and experience he gained representing Fortune 500 companies in high-stakes lawsuits throughout the nation, to represent clients exclusively in Employment Law throughout California.
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On June 17th, the California Division of Occupational Safety and Heath (Cal/OSHA) adopted a revised set of proposed revisions to the COVID-19 Prevention Emergency Temporary Standards. They took effect immediately.
Here are the major changes in the revised regulations:
Testing and Quarantine. Fully vaccinated employees do not need to be tested or quarantined following close contact with COVID-19 cases, unless they exhibit symptoms. As a result, employers are only required to offer paid testing and time off for testing for the following employees:
Physical Distancing. The revised regulations remove any physical distancing or barrier requirements, regardless of employee vaccination status, with one exception: if the worksite has a “major outbreak” (20+ cases in a single employee group). By contrast, if the worksite has an “outbreak” (3+ cases), the employer must evaluate whether to enforce distancing or barriers.
Face Covering. Vaccinated employees are exempt from wearing face coverings indoors, EXCEPT: (1) in “outbreak” situations (3+ cases) when distancing cannot be maintained; and/or (2) in those settings in which the Cal. Dept. of Public Health (CDPH) requires face coverings: schools, youth settings, public transit, healthcare settings (including long term care facilities), prisons, shelters and cooling centers. Employers must document vaccination record and it must be kept confidential.
Unvaccinated workers must still wear face covering, except when: (1) outdoors; (2) alone in a vehicle; (3) eating or drinking; (4) when disability or religious-related accommodation is required; or (5) when job duties make covering infeasible.
Respirators/N95s. Employers must make respirators/N95 masks available to unvaccinated employees upon request.
Air Filtration. Employers must evaluate ventilation systems to maximize outdoor air and increase filtration efficiency.
Still Required. Employers are still required to:
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In February, a United States District Court in San Diego dismissed a lawsuit brought by a spouse against her husband’s employer, Kuciemba v. Victory Woodworks, Inc. The suit alleged that the husband contracted Covid-19 while at work due to the employer’s negligence and brought the virus home, where his wife contracted it. The husband brought a separate worker’s compensation claim against Victory Woodworks.
The court initially dismissed the wife’s claim on the basis that worker’s compensation is the exclusive remedy for her claims. Following amendment of the complaint, the court again dismissed the claims, holding that an employer’s duty is only to provide a safe workplace for its employees, and that this duty does not extend to nonemployees, including spouses at home.
While this was certainly a favorable ruling for the employer, the fact it was issued by a federal judge sitting in San Diego may mean the same issue decided by a state court judge sitting elsewhere in the state might reach a different result. Federal judges tend to be more willing to dismiss marginal claims, particularly in San Diego, a conservative jurisdiction.
On May 18th, Los Angeles County passed an emergency ordinance requiring employers within unincorporated areas of the county to provide employees with up to 4 hours of paid leave (in addition to ordinary Paid Sick Leave and the state-wide Covid-19 Supplemental Paid Sick Leave (SPSL) which took effect in March, 2021.
This applies to all employers, regardless of size of workforce. Full-time employees are defined as either those designated by the employer as full-time, or who were scheduled to work on average at least 40 hours per week in the two weeks preceding the leave. Again, these employees are entitled to take up to 4 hours of paid leave for each vaccination injection.
Part-time employees are entitled to a prorated portion of additional paid leave for vaccination. For example, a part-time employee who worked 20 hours in the two weeks preceding the leave are entitled to just 2 hours of additional vaccination leave.
Additional details:
California currently permits employers to require workers to submit claims arising from their employment to binding arbitration. Excluded are workers’ compensation controversies or disputes relating to employee benefit plans; but most other disputes, including claims of discrimination, harassment, retaliation and wage-hour violations may be arbitrated, outside of court. Before taking the arbitration plunge, however, I urge my clients to give careful consideration to the following points before requiring their employees to submit to mandatory arbitration.
The biggest advantage of arbitration for business defendants is the fact that both liability (i.e., whether you did anything wrong) and damages (what is the employee owed) are decided by a single (usually) arbitrator rather than a panel of jurors who are generally relative strangers to the legal process and who invariably bring their own experiences into the decision-making process. Some jurors have concealed bitterness toward institutions in general and employers in particular. They bring this into the deliberations and it injects uncertainty and risk for the employer defendant.
If the claim is submitted arbitration, the parties generally, though not always, agree upon an arbitrator. If the parties cannot agree, there are mechanisms available for the court or an Alternative Dispute Resolution provider to select the specific arbitrator. Any arbitrator I agree upon will be a retired judge with demonstrated expertise in employment law. I spend time researching potential arbitrators and this often includes informal input from other employment lawyers on their experience with the arbitrator.
Arbitrators are typically less likely to inject huge bias against the employer and can be skeptical of an employee’s claims, particularly if they strain credibility. If the arbitrator is a retired judge, he/she will have seen literally thousands of witnesses on the stand demonstrating various degrees of (dis)honesty and will have a much better handle on this than an average juror. Arbitrators are far less likely to award punitive damages and the damages award in general may be more carefully tailored to the facts of the case. Put another way: some jurors don’t know the value of a buck.
As a general matter, employers tend to prefer not to air dirty laundry in public. Arbitration creates an avenue for private resolution of disputes without making the evidence or outcome public. Sealing testimony, documents or rulings in the civil court system is extraordinarily difficult if a case proceeds through trial to verdict or appeal.
When a court schedules a case for trial, this almost always represents the court’s best estimate when it can try the case. It is never set in stone and, as a consequence, a trial can be continued multiple times resulting in duplicative last-minute preparation, increased cost and witness unavailability. Additionally, even when a trial commences, there are long hours where the parties and their attorneys sit in the hallway waiting for the court to attend to unrelated emergency matters, late jurors, late witnesses or other issues.
When an arbitration is scheduled, it is considered a firm date. Not to say that continuances never occur, but it is generally not for the convenience of the arbitrator. Judges are chiefly concerned with the welfare of the jurors; arbitrators are concerned about the convenience of the parties and lawyers, since they rely on lawyers for their reputation and repeat business. Additionally, arbitration hearings can be scheduled as long as the parties are comfortable, generally between 8 or 9:00 a.m. and 5:00 p.m. on successive days, which results in an overall shorter hearing than a trial with continuous interruptions.
It is legal to preclude arbitration of class actions. This can be a huge positive for large-scale employers, such as chain retailers, because it prevents employees from banding together and multiplying their claims under a single action. Lawyers interested in pursuing class-action lawsuits are far less interested in pursuing a single plaintiff lawsuit with the same allegations because the upside attorney fee potential is minimal. For most smaller employers, 100 employees or less, this is not as important since meaningful class actions are less common.
As demonstrated below, this is either a pro or con depending on how the arbitration hearing is conducted and the award. However, there are extremely limited bases to seek review of an arbitrator’s ruling or award. This can cut off the right of an employee who is unsatisfied with the award to drag the process (and costs) on and on with one or more appeals.
Arbitration is incredibly expensive for employers. This is primarily because, under California law, the employer must pay 100% of the arbitrator’s fee. To better understand this burden, consider a recent case in which I spent hours trying to hunt down a high quality, but reasonably-priced, arbitrator for an employment lawsuit involving discrimination and wage-hour claims. I could not find a retired judge below $700/hour and most were higher, with at least one charging $1,200/hour. For a 5-day arbitration hearing—which is not overly long if there are witnesses—my client was required to deposit approximately $50,000 three months before the arbitration hearing date. This is money that, regardless how well my client did at the hearing itself, it would never see again. Arbitrators cannot order a losing employee to pay any part of the arbitration fees to the employer. In my humble view, this cost can amount to denial of due process.
Notwithstanding my suggestion that arbitrators tend to be more conservative than jurors, a 2019 study by the U.S. Chamber Institute for Legal Reform found that employees actually do better in binding arbitration.
If the arbitrator makes a ruling that is against the applicable law, and it harms the employer’s case, there is no way to challenge the ruling.
This factor may or may not be important. However, if there is a very bad piece of evidence for the employer, such as an email or a hearsay statement that would not, under proper application of the rules of evidence, be seen or heard by the trier of fact (i.e., the jury), it is effectively impossible to prevent the arbitrator from knowing about it, since he/she must know about it to decide whether it is admissible. If he/she excludes it as evidence, while he/she should not consider it, as a practical matter there is no way to “un-ring the bell.”
Some arbitrators do not rigidly apply the rules of evidence. This injects uncertainty into the hearing and outcome, which is not usually good for employers.
On balance, I believe arbitration is a fantastic way to resolve disputes rapidly, particularly for large-scale employers where cost is less of a factor, preventing class actions is a major concern or where confidentiality is important. For employers that do not strictly fit this description, however, I cannot recommend mandatory arbitration because even the smallest dispute is likely to cost tens of thousands of dollars in arbitrator’s fees. As a consequence, an employer can be forced to settle a defensible case because it will cost more to pay for the arbitration.
Employers wishing to further explore this question should contact their experienced employment law counsel or alex@craigielawfirm.
Counseling clients to avoid exposure for disability discrimination can be a prickly business. Consider the following scenario.
Your client operates a small manufacturing concern. Every worker at the widget factory, from the owner to the janitor, takes lunch together at noon, every day. It has been that way every day since your client’s father opened the doors 45 years ago. This is because the factory operates as an assembly line, and it requires everyone’s simultaneous involvement.
One day, an employee, “Sam,” shares that he saw his doctor for vision problems and learned he has Type 2 Diabetes. Your client mutters some sympathetic words (not entirely sure about Diabetes or its different types), and the worker goes on to say that, owing to his Diabetes, he must eat more frequently. He wonders if, perhaps, he could break for lunch at 11 o’clock rather than noon.
Your client knows this is an absurd proposition, given the assembly line. Nonetheless, he says he’ll consider the request and they wander back to the factory floor. A week passes. Two. Sam continues to join everyone for lunch at noon. He does not raise the need to eat early again. However, his diabetic symptoms remind him daily that he needs to break and eat earlier. He gets shaky and light-headed. Not only is he physically uncomfortable, he is growing resentful. Each day that passes is a day closer to when he quits (or is “constructively terminated”) because he needs to eat earlier and your client has forgotten his request.
This describes an actionable case of “disability discrimination” or, at the very least a case of “failure to engage in the interactive process” (yes, that is a separate cause of action). What happens next is anyone’s guess, but it probably doesn’t end well for your client. If he had asked your advice, would you have known what to say? If not, read on.
Duties in this area are triggered when your client learns an employee has a “disability.” California’s Fair Employment and Housing Act (FEHA) defines disability to include a physical or mental disability, or medical condition. While “medical condition” encompasses a limited list of conditions, “physical disability” is read expansively, to include any condition that “limits a major life activity.”
While “mild” conditions, such as a common cold, non-migraine headaches and nonchronic gastrointestinal disorders do not meet the standard, the case law makes clear that FEHA has no durational requirement and even a passing condition may qualify. Employers tempted to define disability too narrowly must know that it has even been found to include uncorrected severe myopia (nearsightedness) and monocular vision.
Back to the widget factory. Sam was diagnosed with Type 2 Diabetes. A disability? Some would argue his condition affects the digestive, hemic and endocrine systems and, because eating is a “major life activity,” Type 2 Diabetes limits a major life activity and thus qualifies as a disability.
Assuming Sam has a disability, this knowledge triggered a duty by your client to “engage in the interactive process” in order to reasonably accommodate Sam if he could perform the essential function of his job with an accommodation.
What does the interactive process look like? It is a “discussion about an applicant’s or employee’s disability — the applicant or employee, health care provider and employer each share information about the nature of the disability and the limitations that may affect his or her ability to perform the essential job duties.”
The best practices for the interactive process include the following:
• Review the accommodation request;
• Obtain written medical release(s) or permission from the employee to obtain records and communicate with providers;
• Request the employee provide documentation from the his/her/their health care or rehabilitation professional regarding the nature of the impairment, its severity, the duration, the activities limited by the impairment(s) and the extent to which the impairment(s) limits the employee’s ability to perform the job’s essential duties/functions.
At the widget factory your client didn’t do any of this. This failure to engage in the process by itself supports an action and damages under FEHA.
Imagine if your client had engaged in the interactive process with Sam. They would have explored whether it was possible to “accommodate” Sam’s disability. The California Government Code and regulations provide guidance on reasonable accommodation. These include:
• Making facilities readily accessible to and usable by disabled individuals (e.g., providing accessible break rooms, restrooms or reserved parking places, etc.);
• Job restructuring;
• Offering modified work schedules;
• Reassigning to a vacant position;
• Acquiring or modifying equipment or devices;
• Adjusting or modifying examinations, training materials or policies;
• Providing qualified readers or interpreters;
• Allowing assistive animals on the worksite;
• Altering when and/or how an essential function is performed;
• Modifying supervisory methods;
• Providing additional training;
• Permitting an employee to work from home; and
• Providing paid or unpaid leave for treatment and recovery.
But, there are limits to this duty. FEHA does not obligate an employer to choose the best accommodation or the specific accommodation an employee or applicant seeks. They are not required to accommodate a worker’s medical marijuana use. Moreover, they are not required to provide an accommodation that causes the business to suffer “undue hardship,” defined as an action requiring “significant difficulty or expense” when considered in light of at least the following factors:
• Nature and cost of the accommodation weighed against tax credits, deductions or outside funding; and
• Nature, size and resources of business and accommodation’s impact on other employees.
At the widget factory, Sam’s desired accommodation was to break an hour earlier for lunch so that he would not feel shaky from a drop in blood sugar. On its face, this was not unreasonable, particularly given that a “shaky,” “light-headed” factory worker can endanger himself or others. Unfortunately, your client did not give this much thought. He clearly did not engage with Sam to explore potential (alternative) accommodations.
To be clear, it may be that your client cannot accommodate Sam. His proposal to allow him an early break might have proven unreasonable, given how the assembly line operates. If all possible accommodations would cause your client undue prejudice (applying the factors above), then it is unfortunate but Sam will need to find other work. Included in this equation is the principle that employers need not create a new position to accommodate a disabled applicant or employee. Thus, your client need not create a job for Sam in Accounting, where he can break early to eat without disrupting the assembly line. But the interactive process must be thorough and well-documented before this conclusion is reached without exposing your client to possible liability.
This law is nuanced. Unless your client has an experienced human resource professional, it might be a good idea to involve employment counsel, at least at the outset. The concepts and obligations may be unfamiliar, and the stakes are high. At least you can now rest easy knowing that you have some basic understanding of the risks in this area, and you can help your clients avoid disability discrimination liability. (This article originally appeared in the April, 2021 issue of the Santa Barbara Lawyer.)
I always thought that “The Strongly-Worded Letter” would be a decent name for an indie rock band. Right up there with “The Wheelchair Assassins.” It would have been fun to be a rock star. But I hawked my drums and went to law school, so I do that thing now instead. Plus, I’d look silly with a mohawk.
This post is about the strongly-worded letter we write as litigators, though no one calls it that. Sometimes it is a “cease and desist letter” or it could be a “demand letter.” In each instance, it is often the first opportunity the opposition–and their lawyers–have to see what they’re up against. In my view, it is not an opportunity to squander.
Why is this letter so important? Well, in my experience sending a cease and desist or demand letter rarely achieves its stated goal. While our clients would like nothing more than to immediately get their way, it almost never occurs that someone undertakes any major action after receiving a cease and desist or demand letter. It just doesn’t work that way. Even in those rare instances in which an entity knows it did the wrong thing, knows it will have to pay eventually, and–rarest of all–the demand contained in the letter is not all that unreasonable, it would be contrary to human nature to receive a demand letter, sit down and just write a check. And everybody knows this.
As a result, while these letters ostensibly demand a stated change or outcome, they are fundamentally dishonest in that they are written by a writer, and intended for an audience, that implicitly understand that that stated change or outcome is not going to come without a fight. A letter alone won’t do it. In my view, then, such letters should be written, not with any expectation they will be heeded and their demands will be immediately met. Rather, they should be approached for what they really are, and what they really do. So, what do they really do?
-They alert a party that he/she/it has been found out. They serve notice.
-They identify our client, whether an individual, a family, an organization or a corporation.
-They attempt to describe a set of facts and circumstances that require redress.
-They educate the opposition and its lawyers who we are, who our clients have chosen to represent them in this dispute.
But this is superficial. The letters do these things, but they do more. They can create leverage (or not). Most importantly:
-They give the opposition an idea how serious our client is about the issue.
-They paint a picture of our client’s financial resources. Who can they afford to hire? How much can they invest in this controversy.
-They can educate the opposition (or not) about how much our clients know about the facts underlying the controversy. Are our clients grossly misinformed?
-They establish credibility.
It’s this last point that I feel is most important. The letter establishes our client’s credibility and our own, as well. It is this credibility that sets the stage, establishes relative power and will remain important throughout the life of the dispute. Is your client serious about this dispute, serious about getting his/her/its way and serious about doing what it takes, and spending what it costs, to achieve its desired result? This first letter will communicate much of this.
In my next post, I will discuss what you and your client should and should not do to gain credibility in any strongly-worded letter.
Business owners cannot be surprised to learn that there have already been hundreds of lawsuits filed in California decrying employers’ pandemic-related practices. So far, the majority of these cases have focused on two theories: (1) perceived failure to provide a healthy and safe workplace, and (2) failure to reimburse necessary business expenses.
Health & Safety Claims
The California Labor Code provides employees with broad protections against avoidable dangers in the workplace. These include laws requiring employers to provide workers, at a minimum:
It is important to know these obligations. Employers should also know that violations of these laws are typically redressed through claims filed under the Private Attorneys General Act of 2004 (PAGA). PAGA permits an “aggrieved employee” to step into the shoes of the Attorney General and bring a “representative” action to recover civil penalties against employers on behalf of themselves and other “aggrieved employees.” The penalties under PAGA are $100 for each aggrieved employee per pay period for the initial violation and $200 per employee per subsequent violation. This can quickly expand a limited event into a major lawsuit.
The cases alleging COVID-related health and safety violations so far include at least the following assertions:
Tips to Avoid Health & Safety Claims
Employers can avoid exposure for health and safety claims by:
Avoiding Claims for Failure to Reimburse Business Expenses
The second focus of COVID-related employment lawsuits so far is employers’ obligations, under California Labor Code §2802, to reimburse employees for necessary business expenses they incur. Traditionally, when workers elected to work remotely and from home, costs incidental to this decision have not been subject to the reimbursement requirement. However, where businesses, in response to COVID, have mandated that employees work remotely, this triggers the reimbursement obligation.
To help avoid these claims, employers should keep in mind the following potential costs requiring reimbursement:
Importantly, the duty to reimburse is not unlimited. Employers are only required to reimburse necessary expenses. A top-of-the-line ergonomic desk chair costing several hundred dollars is not necessary. Further, to the extent that an employee had mobile phone and Wi-fi connectivity before COVID, the case law has clarified that employers are only required to reimburse a percentage of existing services that approximates the enhanced use attributable to mandatory remote working.
Best practices dictate that employers should develop and implement a clear written expense reimbursement policy that is communicated to employees in a manner that permits a signed acknowledgment that a worker has received and understands the policy.
Conclusion
Employers with questions about these recommendations should consult their experienced employment counsel. We are here to help you.
State and Local Minimum Wage Increases
Statewide, the California minimum wage is at least $14 per hour. Employers with 25 or fewer workers (“small businesses”) must pay at least $13 per hour. Certain cities and/or counties have their own minimum wage laws and the higher wage governs. In Los Angeles city and county, for example, minimum wage is $15 per hour; small businesses pay $14.25 until July 1st, when they, too, must pay $15.00. Bear in mind the state minimum wage impacts the salary threshold for exempt status.
Pay Data Reporting Deadline March 31st
The March 31st deadline for employers with 100 or more employees to meet their pay data reporting obligation under SB 973 is coming fast. These employers will be required on an annual basis to submit information on their employees’ pay data by gender, race and ethnicity to the state’s Department of Fair Employment and Housing (DFEH).
New Law Expands Potential Responsibility For Wage-Hour Judgments
Many businesses fail to appreciate the enormous power the California Labor Commissioner wields to swiftly correct workers’ injustices, real or perceived, while, in some cases bringing a business literally to its knees. It would take a longer writing to describe the anatomy of a wage-hour claim. Suffice it to stay that, the actual claim, taken together with statutory “liquidated” damages, myriad penalties, interest (and attorney’s fees), can turn an innocent mistake into an enormous, if not devastating, financial headache for employers.
Since 2018, business owners, and even employees, can be held personally responsible for unpaid wages. Now, Assembly Bill (AB) 3075, effective January 1, 2021, makes it even easier for workers to enforce judgments for unpaid wages by making certain “successor” businesses responsible for their predecessor’s unpaid wage and hour judgments. The law prevents employers from evading unpaid wage and hour judgments by discontinuing one business, only to form a new business that is substantially similar to the old one. It adds Section 200.3 to the Labor Code and provides that a “successor” to a judgment debtor will be liable for any “wages, damages, and penalties owed to any of the judgment debtor’s former workforce pursuant to a final judgment, after the time to appeal therefrom has expired and for which no appeal therefrom is pending.”
Section 200.3 defines a “successor” to include those that use the same facilities or workforce to offer substantially the same services as the debtor; has substantially the same owners or managers; employs a managing agent who directly controlled the wages, hours, or working conditions of the debtor’s workforce of the judgment debtor; and, operates a business in the same industry as the judgment debtor and the business has an owner, partner, officer, or director who is an immediate family member of any owner, partner, officer, or director of the judgment debtor.
Reminder: Employers with 5+ Employees Required to Provide CFRA Leave
Remember that employers with just five (5) or more employees are now required to provide up to 12 weeks of unpaid job-protected leave for eligible employees to care for themselves and a wide variety of family members. (Previously, only employers with 50+ employees were covered by CFRA.)
What Employers Should Do Now
The Law Offices of Alex Craigie helps employers throughout California prevent, address and resolve employment disputes in a logical and cost-effective manner. Reach us at (323) 652-9451, (805) 845-1752 or at [email protected].
The California Family Rights Act provides up to 12 weeks of unpaid job-protected leave for eligible employees to care for themselves and a wide variety of family members. More specifically, under the current CFRA:
Most importantly, SB 1383 expands the range of covered employers under the CFRA to employers with just 5 or more employees. Previously, a covered employer had to have at least 50 employees within a 75-mile radius of the workplace where the leave-seeking employee worked.
The new law also expands the range of family members for whose care CFRA leave may be taken. Effective January 1st, employees may take CFRA leave to care for grandparents, grandchildren and siblings.
If both parents work for the same employer, SB 1383 eliminates the current requirement that the parents split the 12-week leave time. Effective January 1st, each employee-parent will be entitled to his/her own 12-week leave.
Finally, SB 1383 makes it an unlawful employment practice for any employer to refuse to grant a request by an employee to take up to 12 workweeks of unpaid protected leave during any 12-month period due to a qualifying exigency related to the covered active duty or call to covered active duty of an employee’s spouse, domestic partner, child, or parent in the Armed Forces of the United States.
With just 24 days before SB 1383 takes effect, employers that were not previously covered under the CFRA should take immediate steps to become familiar with the Act and revise their employee handbook and policies to reflect the change. Employers already covered by CFRA should understand the changes and revise their handbook and policies accordingly.
Employers seeking to better understand this new law should contact their employment law professional.
