In a recent case (AHMC Healthcare, Inc. v Superior Court), the California Court of Appeal held that an employer practice of rounding of employees’ time to the nearest quarter hour (rather than using the employee’s exact check-in and check-out times) did not violate California law. This case is a huge victory for California employers who choose to round employee time prior to calculating wages and issuing paychecks.
In this case, two employees brought a wage and hour class action against their employer challenging the employer’s rounding practice. Here, the employer used a payroll system that automatically rounded employee hours up or down to the nearest quarter hour instead of using the employee’s exact check-in and check-out times prior to calculating employees’ time worked for purposes of payroll. The employees argued that the employer’s rounding practices violated the California requirement that employers pay employees for “all hours worked” when subject to the employer’s “control.”
Background Continue reading NEW CASE: Rounding Time is OK in California
MIOSHA recently published a new Fact Sheet entitled Eyewashes and Safety Showers, which explains the Agency Instruction MIOSHA-STD-07-IR4 (Eyewash/Shower Equipment) that was published this spring. This Instruction set forth the general requirement that
suitable facilities for quick drenching or flushing of the eyes and body must be provided within the work area for immediate emergency use when the eyes or body of any person may be exposed to injurious or corrosive substances.
The new fact sheet explains the Instruction and explains the following terms:
- Injurious or corrosive materials: chemicals that have the GHS classification of serious skin/eye damage and serious skin/eye irritation.
- Suitable facilities: means eyewash stations and safety showers that:
- Activate within 1 second
- Are simple to operate
- Accept more than one type of motion to activate the station
- Do not require a second/separate motion to remove nozzle cover
- Are located within a 10-second travel time (approximately 55 feet) of an operation where employees use an injurious or corrosive substance.
Finally, the fact sheet clarifies that “personal wash units” can be provided as a supplement, but do not satisfy the requirement to provide suitable eyewash equipment.
It is recommended that employers whose facilities have injurious or corrosive materials review the Instruction and the new Fact Sheet.
Cal/OSHA recently published a Fact Sheet and a Poster regarding Cal/OSHA’s new requirement for covered employers to create and maintain a Hotel Housekeeping Musculoskeletal Injury Program (“MIPP”) and also train their housekeepers with respect to the MIPP.
This new requirement went into effect on July 1, 2018 and requires employers in “lodging establishments,” (e.g. hotels, motels, resorts, and bed and breakfast inns) to develop a written MIPP that addresses risk factors specific to housekeepers.
Continue reading NEW POSTER: California’s Hotel Housekeeping Musculoskeletal Injury Program Poster Released
Over the past several years, the NLRB has “waged war” upon Employee Handbooks and found that many provisions in these handbooks violate employees Section 7 rights under the National Labor Relations Act. As a result of this stricter position, many employers were nervous as to whether their handbooks would pass NLRB muster.
In December of 2017, with its decision in The Boeing Company, it appeared that the NLRB was reversing its position on handbook provisions when it set a new employer-friendly standard for reviewing handbooks. Under the new standard, the NLRB said it would review handbook policies by balancing “(1) the nature and extent of the potential impact on the NLRA and (2) legitimate justifications associated with the rule.” In addition, the NLRB will analyze rules under three categories:
- Category One: Lawful rules that do not prohibit or interfere with NLRA rights or whose potential adverse impact on NLRA rights is overweighed by legitimate justifications.
- Category Two: Rules that are lawful in some cases based on “individualized scrutiny.”
- Category Three: Rules that are unlawful.
Yet, until recently, the NLRB remained silent with respect to the type(s) of policies that fall under each category. Then, last month, the NLRB issued a guidance memorandum (entitled “Guidance on Handbook Rules Post-Boeing”), which provides guidance to employers on the legality of certain handbook rules following the Boeing Company decision.
The memorandum reiterates the three categories of handbook policies (as set forth in the Boeing Company decision) and provides the following examples of the types of policies that likely fall under each category.
Category 1: Rules that are Generally Lawful to Maintain Continue reading NEW GUIDANCE: NLRB Clarifies Its Stance on Employee Handbooks
In a recent case (Troester v. Starbucks Corp.) the California Supreme Court has ruled that the federal de minimis doctrine does not apply in California – at least with respect to the facts presented in this particular case. While the ruling is purportedly limited to this particular case, the holding potentially has major implications for all California employers.
A former Starbucks employee filed a class action against Starbucks coffee claiming that employees assigned to a closing shift were regularly required to work off-the-clock when performing certain closing shift activities. Specifically, after clocking out in a closing shift, the employees were required to shut down the computer system, activate the alarm, and turn the lock on the store’s front door. These tasks typically took between 4 to 10 minutes per day. Continue reading NEW CASE: California Supreme Court Rejects Federal De Minimis Rule
Earlier this year, South Carolina passed an amendment to the state’s Human Affairs Law, which requires employers with at least 15 employees to provide reasonable accommodations to employees with a “pregnancy-related condition” (i.e. medical needs arising from pregnancy, childbirth, or other related medical conditions), unless the employer can demonstrate the accommodation would impose an undue hardship. (See our article “South Carolina Adds to Existing Pregnancy Accommodation Requirements” for more information about this amendment).
To help employers better understand their obligations under this new law, the South Carolina Human Affairs Commission has published Frequently Asked Questions addressing the new amendment. It is recommended that all South Carolina employers review these FAQs.
Continue reading NEW GUIDANCE: South Carolina Publishes FAQs For New State Pregnancy Accommodations Act
On July 9, California Governor Jerry Brown signed Assembly Bill 2770 into law. This new law, which goes into effect on January 1, 2019, extends protections for employers when faced with a defamation claim brought by a former employee — at least in a situation where an employer shares information about a sexual harassment investigation with a potential employer as a part of a reference check.
Many employers dread the “reference check” call because they fear that speaking candidly about the employee could lead to a defamation claim being brought against the company. To avoid this risk, most employers respond to this type of call by only giving the most basic information — (1) confirming that the individual actually worked for the company, (2) confirming the duration of employment, and (3) confirming the position(s) the individual held with the company (remember — providing salary history information is now illegal in California!) The end result — the potential employer does not learn about the problems that existed with this employee and, even worse, a serial harasser could be unleased on another company’s employees.
This new law is intended to combat this problem and will give California employers some leeway in speaking truthfully about sexual harassment investigations. The new law protects former employers who, in responding to an inquiry, tell a prospective employers that they would not rehire the former employee because the former employee engaged in conduct that violated the employer’s policy prohibiting sexual harassment — provided that the communication is made based on credible evidence and “without malice.” In California, a “malicious statement” is one motivated by hatred or ill will, or that is recklessly made without reasonable grounds for believing that the claim is true. Continue reading NEW LAW: California Includes Sexual Harassment Claims in Privileged Communication Law
On July 18, 2019, California Governor Jerry Brown signed Assembly Bill 2282. This bill, which goes into effect on January 1, 2019, amends California’s salary history ban law and attempts to clarify certain provisions of that law. It also clarifies the California Equal Pay Act.
First, the new law defines the following terms:
- “Applicant” or “applicant for employment”: An individual who is seeking employment with the employer and is not currently employed with that employer in any capacity or position.
- “Pay scale”: A salary or hourly wage range.
- “Reasonable request”: A request made after an applicant has completed an initial interview with the employer.
Continue reading NEW LAW: California Clarifies Salary History Ban
On July 5, Hawaii Governor David Ige signed Senate Bill 2351 into law. With this new law, Hawaii is the 7th state to implement a salary history ban and the 14th state to implement a pay transparency law. The new law goes into effect on January 1, 2019.
Under the new law, starting January 1st, Hawaii employers will be prohibited from:
- asking a job applicant about his or her salary history or
- relying on the applicant’s salary history in determining salary, benefits, or other compensation
during the hiring process or negotiation of an employment contract.
Continue reading NEW LAW: Hawaii Passes Pay Transparency and Salary History Ban
The Vermont Attorney General recently issued the Guide to Vermont’s Laws on Marijuana in the Workplace, which provides employers with an overview of the changes to Vermont’s marijuana laws, and summarizes existing employment laws relating to drug testing in the workplace.
Vermont’s recreational marijuana law legalized marijuana for recreational use starting July 1, 2018. This new law left employers wondering what rights they had to control drug use within their workforce. The new Guide clarifies that employers maintain certain rights with respect to employee drug use, including: Continue reading NEW GUIDANCE: Vermont Attorney General Issues Guidance On Vermont’s Marijuana Law