California Appeals Court Delivers Victory for Employers on “Suitable Seating” Claims

A California appellate court recently affirmed a trial court victory on behalf of Ralphs Grocery Co., in a case alleging the grocer should have provided suitable seating to its cashiers. 
By way of background, most California Industrial Wage (IWC) orders require employers to provide workers “suitable seating” under two circumstances: (1) when the nature of the work reasonably permits the use of seats; and (2) when an employee is not actively engaged in duties that require standing, or during “lulls in operation.”
Former Ralphs employee Jill LaFace sued Ralphs, arguing that cashiers could reasonably perform their cashiering duties while seated and that the company was also obligated to provide seats for cashiers to use during “lulls in operation.” Following a nonjury trial, Los Angeles Superior Court Judge Patricia Nieto held that the nature of LaFace’s work did not permit sitting because “Ralphs cashiers continuously perform work that should or even must be performed while standing.” She also held that Ralphs had no obligation to provide seating for use during “lulls in operation” because the cashiers were expected to remain busy between customers.
LaFace appealed. The appellate court ruled that an employer does not have to provide seating where the employer expects employees to keep busy and not stand, which functionally means there is no “lull” in duties. The court also held that employees bringing suitable seating claims and other claims for penalties under California’s Private Attorneys General Act (PAGA) are not entitled to a jury trial, which may also be seen as a victory for California employers.
For employers of workers where there is some question whether seating may be required, this case highlights the need for an established, clearly comunicated policy. Either employees may be permitted to sit while performing their job or during lulls, in which case suitable seating should be provided, or written policies communicated to workers should make it clear that employees are expected to remain busy, even during lulls in operation.
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Alex Craigie Selected for Inclusion in 2022 Southern California SuperLawyers for Employment Litigation

The 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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San Diego Court Rejects Claim Worker Brought Covid-19 Home

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.

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Los Angeles County Requires Employers to Provide Paid Leave for Employees to Get Vaccinated

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:

  • This leave is only available to employees who have fully exhausted all California Paid Sick Leave and SPSL;
  • Employers can request written verification of Covid-19 vaccination;
  • Employees receive their normal rate of pay for this leave, which may be calculated by using the employee’s highest average two-week pay from January 1 – May 18, 2021.
  • Covered employers must “conspicuously display” a written notice of this ordinance; and
  • Covered employers must maintain records demonstrating compliance with this ordinance for four (4) years; failure to provide these records creates a presumption of noncompliance.
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California Expands CFRA Leave to Employers with 5+ Employees

On September 17, 2020, Governor Gavin Newsom signed into law Senate Bill (“SB”) 1383, which expands the California Family Rights Act (CFRA) family and medical leave law. This Bulletin discusses these changes, which take effect January 1, 2021.

Understanding The California Family Rights Act

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:

  • An eligible employee may take an unpaid leave to bond with an adopted or foster child or to bond with a newborn.
  • An eligible employee may take unpaid leave to care for a parent, registered domestic partner, or child with a serious health condition.
  • CFRA leave may also be taken for the employee’s own serious health condition.
  • Full-time employees may take leave of up to 12 work weeks in a 12-month period. Part-time employees may take leave on a proportional basis.
  • The leave does not need to be taken in one continuous period of time.
  • An employer may require a 30-day advance notice of the need for a CFRA-qualifying leave. When this is not possible due to the unexpected nature of the qualifying event, notice should be given as soon as practicable.
  • The employer may require written communication from the health-care provider of the child, parent, registered domestic partner, or employee with a serious health condition stating the reasons for the leave and the probable duration of the condition. However, the health care provider may not disclose the underlying diagnosis without the consent of the patient.

 What’s New

 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.

What Employers Should Do Now

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.

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Calif. Governor Signs Employment Laws Related to COVID-19 Exposure

On September 17, 2020, California Governor Gavin Newsom signed into law two critical pieces of legislation. Assembly Bill (AB) 685, which imposes certain notification obligations on employers when one or more employees test positive for COVID-19, takes effect January 1, 2021. Senate Bill (SB) 1159 expands employees’ rights to workers’ compensation benefits and also imposes a significant new reporting deadline when an employee tests positive for COVID-19. SB 1159 takes effect immediately.

AB 685 Notice Requirements

Assembly Bill 685 imposes important notification requirements when employers discover that one or more employees have been diagnosed with COVID-19. More specifically, the new law sets forth the following notice requirements:

Within one (1) business day of a “potential exposure” based on a confirmed case of COVID-19 in a workplace, an employer must:

• Provide written notice to all employees, employers of subcontracted employees and employee representatives, including unions who were at the worksite within the infectious period who may have been exposed o COVID-19.

• Provide written notice to employees and/or their representatives regarding COVID-19-related benefits that employees may receive, including workers’ compensation benefits, COVID leave, paid sick leave and the employer’s anti-discrimination, anti-harassment and anti-retaliation policies.

• Provide notice to employees regard the employer’s disinfection protocols and safety plan.

Written notice under the law may be made by personal delivery, text message and/or email, provided that it can be reasonably anticipated to be received within one (1) business day. It must also be in English and the language understood by the majority of employees.

AB 685 also requires employers who have a sufficient number of COVID-19 positive cases that meet the definition of a COVID-19 outbreak (as defined by the Cal. State Dept. of Health), to report certain information to the employer’s local health agency within forty-eight (48) hours of learning of the outbreak.

The requirements of AB 685 do not apply when the employee(s) who test positive for COVID-19 work remotely. Again, AB 685 takes effect January 1, 2021.

SB 1159 – Disputable Presumption

SB 1159 has two important components related to employees who test positive for COVID-19. First, it creates a “disputable presumption” that an illness or death resulting from COVID-19 arose out of and in the course and scope of employment for workers’ compensation purposes. This presumption covers cases in which the worker tested positive from July 6, 2020 through January 1, 2023. Thereafter, the presumption will no longer apply.

In order for the presumption to apply: (1) the positive test for COVID-19 must occur within 14 days after a day that the employee worked at the employer’s place of employment; (2) the day of work was on or after July 6, 2020; and (3) the positive test must have occurred during a period of an outbreak at the employee’s place of employment.

Important for this presumption, an “outbreak” exists if, within 14 days, one of the following occurs at the place of employment: (1) if the employer has <100 employees at a specific site, 4 employees test positive for COVID-19; (2) if the employer has >100 employees, 4% of the employees test positive for COVID-19; (3) a specific place of employment is ordered to close by a local public health department, the State Dept. of Public Health, Div. of Occupational Safety and Health or a school superintendent due to a risk of infection with COVID-19.

SB 1159 – Reporting Requirements

SB 1159 also creates new reporting requirements. When an employer knows or reasonably should know that an employee has tested positive for COVID-19, the employer must report that fact to its workers’ compensation claims administrator within three (3) business days, via email or fax.

The information to be reported includes: (1) that an employee has tested positive (no personally identifiable information regarding the employee, unless he/she asserts the infection is work-related or has filed a claim); (2) the date the employee tested positive; (3) the address of the specific place of work during the 14-day period preceding the positive test; and (4) the highest number of employees who reported to work at the employee’s specific place of employment in the 45-day period preceding the last day the employee worked at each specific place of employment.

What Employers Should Do Now

Employers should immediately become familiar with these new requirements. Employers with any questions about these new laws should contact their employment law professional.

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]

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Should Employers Provide or Pay For Face Masks?

I believe the answer is YES. Cities and Counties throughout California are increasingly ordering or recommending the use of non-medical masks or “cloth face coverings” to help stem the spread of COVID-19. This triggers two obligations. First, Cal/OSHA requires California employers to provide employees with all necessary safety equipment. Second, federal and state laws require employers to reimburse employees for all reasonably incurred business expenses. Whether an employer provides the protective gear or employees procure them independently but seek reimbursement, employers should be prepared to shoulder this responsibility.
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Alex Craigie Named 2020 SuperLawyer

Alex Craigie has been named a Southern California Super Lawyer in the area of Employment Litigation: Defense. Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. This selection process includes independent research, peer nominations and peer evaluations. The final published list represents no more than 5 percent of the lawyers in the state.
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New California Law Prohibits Mandatory Arbitration for Employment Claims

On October 10, 2019, California Governor Gavin Newsom signed a bill (AB 51) intended to prohibit employers from requiring employees to sign agreements that they will submit claims arising from their employment to binding arbitration (as opposed to resolution of the dispute in the civil court system, by judge or jury). The law takes effect January 1, 2020. The new law, if ultimately enforced, has important implications for any employer that requires employees to sign arbitration agreements.

What the Law Says

Assembly Bill 51 adds Section 432.6 to the California Labor Code. While it was packaged as a “sexual harassment” bill, AB 51 covers virtually any claim arising from the employment relationship (excluding workers’ compensation claims, which are not arbitrable in any event). The new law:

  • Prohibits any person (including employers) from requiring, as a condition of employment or employment-related benefits, that employees “waive any right, forum, or procedure” for violations of the California Fair Employment and Housing Act (FEHA) or the California Labor Code.
  • Prohibits employers from including arbitration agreements/clauses that provide an “opt-out” clause, requiring an employee to affirmatively opt-out of mandatory arbitration.
  • Creates a new private right of action (aka “claim”) against any employer that violates the new law. In addition to injunctive relief, the law permits a prevailing employee to recover her attorney’s fees.
  • Does not apply to any agreement entered into before January 1, 2020.
  • Is not intended to invalidate an agreement otherwise enforceable under the Federal Arbitration Act (FAA).
  • Does not apply to post-dispute settlement or severance agreements.

Why the New Law Might Ultimately Be Held Unenforceable

Most experts expect to see legal challenges to the new law, primarily on the grounds that it conflicts and is preempted by the FAA, which dates from 1925 and exists to further arbitration in cases involving interstate commerce. Individual state laws that “stand[] as an obstacle to” arbitration have been repeatedly struck down by the United States Supreme Court as preempted by the FAA. Whether the new law will survive these challenges is presently unclear.

What Employers Should Do

Given the uncertainty surrounding AB 51, it is important that employers who currently (or intend to) require workers to sign arbitration agreements take steps before the end of 2019 to ensure compliance if the law is ultimately enforced. No employer should want to be a “test case.”

Because the law specifically excludes FAA-governed agreements, certain employers (depending on industry) may still be able to require employees to sign an agreement to submit employment disputes to arbitration under the FAA (stating the basis for FAA jurisdiction).

Alternatively, employers could continue to include arbitration provisions, but exclude administrative charges that employees may file with the DFEH, EEOC, NLRB, DOL or the California Labor Commissioner from arbitration. Unfortunately, these exceptions would essentially remove the protections afforded by arbitration in the first place.

As the law in this area remains fluid, employers should not hesitate to consult with their qualified employment law professionals to ensure they remain compliant with all state and federal employment laws, including AB 51.

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].

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July 1st Minimum Wage Hikes in Several California Locales

Certain California cities and counties are increasing the minimum hourly wage for nonexempt employees effective July 1st! Please see the list below to determine if your business or California-situated employees are affected. Many regulations differentiate between businesses with 25 or fewer employees and those with 26 or more employees.

Location                          25 or fewer employees    26 or more employees

California statewide

(no change)                      $11.00                               $12.00

Los Angeles city              $13.25                               $14.25

Los Angeles county         $13.25                               $14.25

Malibu city                      $13.25                               $14.25

Pasadena city                   $13.25                               $14.25

San Diego (no change)    $12.00                               $12.00

San Francisco                  $15.59                               $15.59

Santa Monica                   $13.25                               $14.25

Palo Alto                          $15.00                               $15.00

What Employers Should Do

  • Make sure that, by July 1st, your nonexempt employees are paid at least the minimum wage applicable to your California city or county.
  • Make sure that any employees you classify as “exempt” are properly classified, based on the applicable state and federal criteria. If in doubt, consult with your qualified employment law counsel.
  • Be aware that, out-of-state employers with in-state employees must comply with California state, as well as any applicable county or city laws for those in-state employees.
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California Supreme Court Defines “Employee” vs. “Independent Contractor”

On April 30, 2018, the California Supreme Court, in Dynamex Operations West, Inc. v. Superior Court, clarified the proper test for California companies to apply before treating any worker as an independent contractor. This post discusses this important new holding.

Background on “Employee” vs. “Independent Contractor”

For some businesses and their workers, the question whether the worker is properly classified as an “employee” or an “independent contractor” is both important and challenging. For employees, the hiring business pays federal Social Security and payroll taxes, unemployment insurance taxes and state employment taxes, provides worker’s compensation insurance and must comply with numerous state and federal statutes and regulations governing the wages, hours, and working conditions of employees. The worker obtains the protection of the applicable labor laws and regulations, including protections against unlawful discrimination, harassment and retaliation.

If, on the other hand, a worker should properly be classified as an independent contractor, the business avoids those costs and responsibilities, the worker obtains none of the numerous labor law benefits, and the public may be required in some circumstances to assume additional financial burdens with respect to such workers and their families.

The proper classification analysis is, in the first instance, up to the hiring business. The decision is often made without the assistance of counsel and, where the classification lands on independent contractor, is frequently wrong. The consequences may not become known for months or even years. However, disgruntled employees misclassified as independent contractors often ultimately bring claims or suits under wage-hour laws. Worse, the California Employment Development Department (EDD), which administers unemployment insurance claims, can audit a business suspected of widespread misclassification and, in extreme instances, impound funds without notice to the business. Therefore, it is critical before a business classifies any worker as an independent contractor that it ensures the classification is accurate.

The DynamexCase and the ABC Test

Since 1989, California courts were historically guided in deciding the independent contractor question by “the seminal California decision on the subject,” S.G. Borello & Sons, Inc. v. Dept. of Industrial Relations. This case provided employers, their lawyers, the state and the courts with several non-exclusive factors to consider in the employee/independent contractor analysis.

In the Dynamexlawsuit, two delivery drivers sued the company on behalf of themselves and similarly situated workers claiming that the company misclassified its drivers as independent contractors rather than employees. The California Supreme Court expressed the view that the multi-factor test previously announced in the S.G. Borellocase “makes it difficult for both hiring businesses and workers to determine in advance how a particular category of workers will be classified.” Therefore, the Supreme Court adopted a test previously adopted by some other courts known as the “ABC Test.”

Under the ABC Test, a worker is presumed to be an employee, unless the worker:

  1. Is free from the employer’s control and direction;
  2. Performs a service that is either outside the usual course of the business for which such service is performed or that such service is performed outside of all the places of business of the enterprise for which such service is performed; and
  3. Customarily engages in an independently established trade, occupation or business.

What Should Employers Do

If anything, the stakes get higher all the time for companies that misclassify workers as independent contractors. Claims brought before the Division of Labor Standards Enforcement (DLSE), as well as civil lawsuits, including class action and private attorney general (PAGA) lawsuits are on the rise.

Before classifying one or a class of workers as independent contractors, companies should be sure they meet the applicable criteria. Additionally, the role of workers currently classified as independent contractors should be evaluated under the ABC Test. Given the complexity of this area of employment law, employers should consider working with their employment counsel to make sure they are in compliance.

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Employers Required to Use New Form I-9 by September 18, 2017

Employers must begin using a new version of the Form I-9 issued by the U.S. Citizens and Immigration Services (USCIS) no later than September 18, 2017 or face potentially large fines. The Form I-9 is the document employers must use to verify the identity of new hires to ensure they are authorized to work in the United States.

What’s Different?

The changes to the Form are subtle. There are changes to the instructions and the list of documents approved to verify eligibility. A Consular Report of Birth Abroad (Form FS-240) was added as a List C document, and all the certifications of report of birth issued by the State Department (Form FS-545, Form DS-1350, and Form FS-240) have been combined.

The List C documents have been renumbered, except for the Social Security Card. All changes are described in detail in the newly revised Handbook for Employers: Guidance for Completing Form I-9 (M-274).

Storage and Retention Rules

Employers must be able to present the Forms to government officials for inspection within 3 business days of a request. Employers who choose to keep paper copies of the documents their employees present may store them with the employee’s Form I-9 or with the employees’ records. However, the USCIS recommends that employers keep Form I-9 separate from personnel records to facilitate an inspection request.

Employers are required to retain an employee’s Form I-9 until the later of (1) the date the employee began work for pay + 3 years, or (2) the date employment was terminated + 1 year.

Potential Penalties for Failure to Follow Form I-9 Rules

In 2016, Immigration and Customs Enforcement (ICE) announced increases for Form I-9 violations. For example, the minimum and maximum fines for simple Form I-9 violations increased to $216 and $2,156, respectively. Additionally, minimum and maximum fines for first offenses of Unlawful Employment of Unauthorized Workers has increased to $539 and $4,313 per worker, respectively.

Employers with lingering questions about the new Form I-9 should contact their employment counsel.

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