The battle over whether employees may waive the right to pursue claims under California’s Private Attorneys General Act (PAGA) in arbitration continues. The Supreme Court of the United States recently requested a response from ex-Bridgestone Retail Operations LLC employees to Bridgestone’s January 5, 2015 petition for a writ of certiorari challenging the California Supreme Court’s refusal to enforce an arbitration agreement waiving PAGA claims. Continue Reading
On January 21, 2015, a California Appeals Court affirmed the trial court’s ruling in Nealy v. City of Santa Monica, 2015 Cal. App. LEXIS 139 (February 13, 2015) granting summary judgment for the City of Santa Monica (“City”) on claims of disability discrimination, failure to provide reasonable accommodation, failure to engage in the interactive process, and retaliation by a City employee. Continue Reading
On February 20, 2015, the California Occupational Safety and Health Standards Board voted on new changes to the Heat Illness Prevention regulation. The Standards Board voted 5-1 to approve the proposed amended statute. Marley Heart, Executive Director of the Standards Board, requested the Office of Administrative Review to allow for an early effective date. The Office of Administrative Law is responsible for reviewing administrative regulations proposed by the Standards Board to ensure that they are compliant with the California’s Administrative Procedure Act. The Office will transmit this amendment to the Secretary of State for publishing in the California Code of Regulations. We expect that the new regulation will be rolled out at the beginning of the heat season, in May of this year.
Employers should promptly update their heat illness prevention plans and train their employees for compliance with the new regulations. What follows below is a quick summary of the amendment to help you revise your plan and get ready for this year’s heat season.
Potable Water Requirements
The heat illness regulation previously stated that employers had to provide employees with access to potable drinking water that was clean and maintained through individual dispensers, faucets, or drinking fountains. The Division of Occupational Safety and Health previously cited employers for not providing continuous water to employees and for failing to ensure that the employees have properly marked dispensable cups or bottles to obtain clean water. The regulation also provided that where the employer cannot otherwise continuously supply or replenish employees’ water (e.g. with a mobile crew that is located off-site), that it shall provide water in sufficient quantity at the beginning of the shift. The employer must provide each employee with a minimum of one quart of water per hour for the entire shift. The amendment now also states that the water must be fresh, pure, suitably cool, and provided free of charge to employees. Additionally, the water must be located as close as practicable to the areas where employees are working, unless the employer can demonstrate infeasibility.
Prior to the amendment, employers were obligated to provide shade to at least 25% of the employees on shade only when the temperature exceeded 85 degrees.
Now the amendment requires that the employer provide shade when the temperature exceeds 80 degrees and so that it can accommodate the total number of employees on recovery or rest periods. The employer must provide enough shade during meal breaks to accommodate the total number of employees that remain outside. In addition, the shaded area has to be located as close as practicable to the areas that employees are working.
Preventative Cool-Down Rest Periods
The heat illness regulation requires employers to allow and encourage employees to take a minimum of five-minutes for a cool-down rest period if they feel they needed to protect themselves from overheating. Now in addition to allowing and encouraging employees to take cool-down rest periods, employers are required to monitor and ask employees taking rest periods whether he or she is experiencing symptoms of heat illness. Employers are to encourage employees taking a rest period to remain in the shade. Employers are prohibited from ordering employees to work until signs or symptoms of heat illness have been abated.
Employers have to implement high-heat procedures when the temperature equals or exceeds 95 degrees Fahrenheit. Employers have to ensure that there is effective communication between supervisors and employees. Employers are also obligated to observe employees for alertness and signs or symptoms of heat illness.
In addition to these procedures, the amendment requires that employers assertively monitor employees by instituting: a one supervisor to twenty or fewer employee ratio, a mandatory buddy system, a regular communication through electronic device routine with each employee, or another effective means of communication. Employers are also obligated to designate one or more employees on each worksite as authorized individuals for emergency medical services. If there is no designee on shift, employers must instruct other employees to call for emergency services when required.
The amendment requires pre-shift meetings that must take place before the commencement of work on each shift during high heat conditions. The shift meetings should: review high heat procedures, encourage employees to drink plenty of water, and remind employees of their right to take a cool-down rest break when needed.
Agricultural employers now have additional requirements such as providing employees with ten minute cool down rest periods every two hours. The amendment also clarifies cool-down rest breaks and their impact on the mandatory meal and rest breaks required under the California Industrial Wage Orders and California Labor Code Section 226.7.
Emergency Preparedness Requirements
High-Heat emergency response preparedness requirements now must include: (1) an effective communication with employees by voice, observation, or electronic means; (2) an effective response with first aid measures; and (3) procedures for contacting emergency responders to help stricken workers.
Employers are to assign supervisors to closely observe and monitor employees during a heat wave. A heat wave is defined as temperatures over 80 degrees Fahrenheit or anytime the temperature is ten degrees higher than the average high daily temperature in the preceding five days. Employers must closely monitor a new employee for the first 14 days of his or her employment in a high heat area.
In addition to all of the previous training requirements, the amendment now specifically requires employers to train employees in: (1) the employer’s responsibility to provide water, shade, cool-down rests, and access to first aid; (2) the employees’ right to exercise their rights under this standard without retaliation; (3) first aid and emergency response procedures; and (4) concepts and methods of acclimatization.
Heat Illness Prevention Plan
The amendment increased the requirements of heat illness prevention plans. The employer must establish, implement, and maintain an effective heat illness prevention plan in both English and in any language understood by the majority of the employees. The plan must be made available to employees at the worksite and to representatives of the Division upon request. The Heat Illness Prevention Plan may be included as part of the employer’s Illness and Injury Prevention Program but must specifically include procedures for the provision of water and access to shade, high heat procedures, emergency response procedures, and acclimatization methods and procedures.
The voluminous changes to the heat regulation are sure to create a large wave of citations this spring and summer. There are tips that you can follow to protect your companies.
10 Tips for Compliance:
- Review your heat illness and prevention plan and amend it so that it reflects the new requirements including potable water requirements, shade requirements, preventative cool-down rest periods, high heat procedures, acclimation, and training policies and procedures.
- Review your employee handbook for cool-down rest periods and make sure it is consistent with the new regulations.
- Review or create new policies and procedures for monitoring employees taking cool-down rest periods.
- Review or create new plans to monitor employees in high heat conditions by instituting a one supervisor to twenty or fewer employees ratio, a mandatory buddy system, or a consistent practice for supervisors to check in with employees.
- Review your emergency preparedness plan and make sure it has a designed individual who can call for emergency services when needed.
- Make sure your emergency preparedness plan includes an effective communication with employees by voice, observation, or electronic means, an effective response with first aid measures, and procedures for contacting emergency responders to help stricken workers.
- Closely monitor temperature changes to ensure that you are following the amendment’s acclimatization requirements.
- Conduct a site inspection at each of your California facilities to ensure that shade and water is being provided as close as practicable to the areas employees are working.
- Train your employees and supervisors on the revised heat illness plan and procedures, cool-down rest breaks, and monitoring procedures. Retrain your employees on how to prevent heat illness.
- Call your attorney for advice on how to revise your plan and procedures.
You can read the text of the amendment at https://www.dir.ca.gov/oshsb/documents/Heat_illness_prevention_txtbrdconsider.pdf
In a recent turn of events, the California Court of Appeal ruled in Gerard v. Orange Coast Memorial Medical Center (Feb. 10, 2015) that healthcare workers cannot waive their second meal period when working shifts in excess of 12-hours despite the Industrial Welfare Commission’s (“IWC”) order to the contrary. The court found that the IWC lacked authority to circumvent the California Labor Code and, therefore, partially invalidated Wage Order No. 5-2001, which governs the healthcare industry. Continue Reading
An employer did not violate California’s Family Rights Act (“CFRA”) by terminating an employee who engaged in outside employment while out on CFRA medical leave, conduct prohibited by the employer’s policy, the California Supreme Court has ruled. Richey v. AutoNation Inc., No. S207536 (Cal. Jan. 29, 2015).
The Court said the plaintiff had “no greater right to reinstatement or to other benefits and conditions of employment than if [he] had been continuously employed” during the statutory leave period. The Court also found that, although the arbitrator, who heard the matter and rendered an award in the employer’s favor, may have erred in applying to the CFRA the “honest belief” defense used in cases under the federal Family and Medical Leave Act (“FMLA”), the employee suffered no prejudice because the arbitrator concluded the employer terminated him for violating company policy. This finding was sufficient to uphold the arbitration award, the Court said. (The defense allows employers to avoid liability under the FMLA when the allegedly discriminatory or retaliatory action is based on an honest, but mistaken, belief about an employee’s misconduct.) Accordingly, the Court ruled the Court of Appeal erred in vacating the arbitrator’s award. Continue Reading
Last year the California Department of Industrial Relations (DIR) and the Department of Labor Standards Enforcement (DLSE) initiated a campaign, entitled “Wage Theft is a Crime,” to educate California workers about the complexities of California’s wage laws. DIR Director Christine Baker stated that the “department’s mission is to protect California’s workers with comprehensive labor laws and enforcement focused on businesses that intentionally skirt the law.” The department’s recent effort is the “Wage Theft is a Crime” campaign which encourages workers, especially those in low-wage industries, to report possible labor code violations within the workplace. In support of this program, educational materials have been distributed through local events, mailings, and digital and print media in English, Spanish, Chinese, Vietnamese, Hmong and Tagalog. Continue Reading
Two Assembly Bills addressing employee wages in California recently were referred to legislative committees in late January and early February 2015. Although early in the legislative process, both could have a palpable impact on employers doing business in California.
Senate Bill 3 – Minimum Wages
The first, Senate Bill (SB) 3, proposes to increase minimum wages twice more over the next two years. Specifically, SB 3 seeks an increase to $11 per hour effective January 1, 2016, and then $13 per hour effective July 1, 2017. Further, the bill proposes an annual automatic minimum wage adjustment, beginning January 1, 2019, to correspond with the rate of inflation, unless the average percentage of inflation for the previous year was negative. Thus, should SB 3 pass, employers can expect multiple additional minimum wage increases over the next two years, followed by potential annual increases every year thereafter. Continue Reading
Reversing a trial court’s awarding of a $90 million judgment in a class action case for alleged rest period violations under California law, the California Court of Appeal has ruled that a security company had provided its security guards with proper rest periods, even though they were required to remain “on call” during those breaks. Augustus v. ABM Sec. Services, Inc., Nos. B243788 & B247392 (Cal. Ct. App. Jan. 29, 2015). Significantly, the Court ruled that remaining on call during rest breaks does not “constitute performing work” under Section 226.7 of the Labor Code, which mandates that during rest breaks, an employee not be required “to work,” and the corresponding wage order.
Jennifer Augustus was a security guard for ABM Security Services, Inc. The responsibilities of Augustus and other ABM security guards (collectively, the “guards”) included providing physical security for their assigned premises and responding appropriately to emergency or safety situations. Guards greeted visitors, raised and lowered flags on the premises, monitored traffic, patrolled the buildings, escorted employees and visitors to their cars, and controlled access to the premises. The company provided the guards with rest periods during which the guards must keep their radios and pagers on, remain vigilant, and respond when needs arose. They were otherwise permitted to engage, and did engage, in other activities, including smoking, reading, making personal telephone calls, attending to personal business, and surfing the Internet.
The guards filed a class action suit against the company, alleging that ABM’s failure to completely relieve the guards of all duties during their rest periods violated Section 226.7 of the California Labor Code.
The trial court agreed and granted the guards’ motion for summary judgment. It concluded that an employer must relieve its employees of all duties during rest periods, including while they are on call. The court entered a judgment of approximately $90 million in damages, interest, penalties, and attorney’s fees against the company. The company appealed.
Under California law, employers must provide employees meal periods and rest periods. Lab. Code, §§ 226.7, 512; Industrial Welfare Commission (“IWC”) Wage Order No. 4-2001, Cal. Code Regs., tit. 8, § 11040. An employee who works more than three-and-one-half hours per day must be permitted to take a paid 10-minute rest period, during which the employee shall not be required “to work,” every four hours of work or major fraction thereof. An employee who works at least five hours also must be given a 30-minute unpaid meal period, during which the employee must be “relieved of all duty,” if the meal period is not to be counted as time worked.
On Call Not the Same as Working
Before the appeals court, the guards argued the company failed to provide lawful rest periods because they must remain on call and respond to calls at all times; thus, their rest periods were indistinguishable from the rest of their workday.
The appellate court acknowledged the guards’ argument had “a certain appeal,” but it rejected the argument because Section 226.7 does not require that a rest period be distinguishable from the remainder of the workday. Section 226.7 mandates only that an employee not be required “to work” during breaks. The Court observed that “even if an employee did nothing but remain on call all day, being equally idle on a rest break does not constitute working.”
Further, the Court pointed out the guards did not perform the same tasks during a rest period that they performed during active duty. For example, they did not patrol the premises, greet visitors, monitor or direct parking, raise or lower the flag, or restrict the movement of persons or property. Rather, unless specifically called to duty, the guards were free to engage in personal activities during their breaks, such as reading, surfing the Internet, and attending to personal business. Thus, the Court determined that “remaining available to work is not the same as performing work.”
The Court also found the language in Wage Order No. 4 did not support the guards’ contention. In Wage Order No. 4, the IWC directed that employees be “relieved of all duty” for meal periods in order for the meal period to be unpaid. However, the IWC did not include a similar requirement in the rest period provision, which the Court found indicated the IWC did not intend to impose such a requirement. Further, all rest periods must be paid, suggesting they normally are taken while on duty and subject to employer control. Accordingly, the Court determined that Wage Order No. 4’s language did not support the guards’ claim.
Last, examining the meaning of “work” as used in the Labor Code and Wage Order No. 4, the Court concluded the prohibition against requiring an employee to “work” during a rest period means an employer cannot require an employee to engage in some action for its benefit. However, as on call status is “a state of being, not an action,” the Court found the prohibition does not extend to “the status of remaining available to work.” Accordingly, the Court reversed the judgment in favor of the guards and returned the case to the trial court.
It remains to be seen whether the California Supreme Court will review this case to further address on call status. Jackson Lewis will continue to monitor and report on developments in this challenging area of the law.
Jackson Lewis attorneys are available to answer inquiries about this and other workplace issues.
The California Division of Labor Standards & Enforcement (“DLSE”) has published additional FAQs regarding California’s new Paid Sick Leave law. These FAQs, dated January 2015, can be found here. Below is a summary of the DLSE’s FAQs:
- The Wage Theft Prevention Act Notice (“Notice”): The new Paid Sick Leave law is clear that employees hired after January 1, 2015 are to be provided the State’s new Notice pursuant to Cal. Labor Code section 2810.5 at the time of hire. Linked here is the State’s template Notice. However, the law is unclear as to whether employers must issue the new notice to employees hired pre-January 1, 2015. The supplemental FAQs address this issue as follows:
- If the employer changes or institutes a new Paid Sick Leave policy, then employers must provide to employees hired prior to January 1, 2015 a new Notice within seven days of the change, or alternatively, provide individual notice to such employees using an alternative authorized method. The FAQs do not specifically address what an authorized alternative method is. Continue Reading
AB 2053 went into effect on January 1, 2015, thereby requiring that California employers with 50 or more employees provide training on the “prevention of abusive conduct” along with the sexual harassment training already required by law.
“Abusive conduct” is defined under California Government Code section 12950.1(g)(2) as the “conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests.” For example, abusive conduct “may include repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person’s work performance.” Notably, there is no requirement that the abusive conduct be tied to a protected characteristic. Continue Reading