Monday, June 29, 2020

Hope for Workers’ Wage Claims for Commute Time

Earlier this month, the California Court of Appeal found that workers may be entitled to pay and reimbursements for time commuting to and from their workplaces. Typically, time commuting is not compensable, but, time commuting that also is in service of the employer or under the employer’s control might be another story.

 

In the class action at issue, Oliver v. Konica Minolta Business Solutions U.S.A., Inc. (CA6 H045069 6/2/20), the California Sixth District Court of Appeal found that triable issues of material fact existed as to whether service technicians can be paid and reimbursed for commuting to and from their non-office locations of the day. The court reversed summary adjudication in favor of the defendant and remanded the case to the trial court for further proceedings. 



The technicians sought wages for time spent commuting to and from the first and last work location and reimbursement for the mileage accrued during such commutes. The technicians rarely drove to an actual branch location for work—instead, they usually began their days by driving from home to the first customer location of the day and ended their days by driving from the last customer location home. The Court held that the key to deciding if the technicians were entitled to be paid for commute time was whether the technicians were “required during the commute to carry a volume of tools and parts” that restricted them from using their time effectively for their own purposes. The technicians drove their personal vehicles containing their employer’s tools and parts to customer sites to make repairs to copiers and other machines. Such tools and parts included a laptop, small vacuum cleaner, a hand cart, a service case containing hand tools, and around 150-250 expensive replacement parts for machines. Although the technicians were not required to carry their employer’s tools at all times and could use “field stocking locations” to store parts between service locations, most technicians carried smaller tools and parts in their cars as “field stocking locations” were either inconvenient or unavailable. Technicians were also required to have at least 25 cubic feet of lockable cargo space in their cars for the tools, which, according to the employer’s “Field Parts Inventory Practice Guide,” should have been “easy to locate” and were subject to random audits. 

 

The trial court found for the defendants, determining that the commute time was not compensable as “hours worked” under Industrial Wage Commission Order No. 4-2001, which defines hours worked as the time which an employee is subject to control of an employer. The trial court also found that the service technicians were not entitled to reimbursement for the mileage under Labor Code § 2802. Labor Code § 2802 requires an employer to reimburse its employees for all duty-related expenses. 

 

The Court of Appeal, relying on Morillion v. Royal Packing Co., found otherwise. See 22 Cal. 4th 575 (2000). In Morillion, the California Supreme Court found that commute time to and from work is generally not compensable, but “compulsory travel time” is required to be compensated. Id. at 587. Under this analysis, the “level of the employer’s control over its employees . . . is determinative.” Id. In other words, if an employee cannot use their commute “time effectively for [their] own purposes,” such as dropping off their children to school or stopping for breakfast before work, the employee is subject to their employer’s control. Id. at 586. Therefore, in this case, if the service technicians were required to carry their employer’s tools and were not able to use their commute time “effectively for [their] own purposes,” then the technicians were subject to the control of their employer and Konica Minolta would have to pay the technicians for their commute-time wages and mileage reimbursement. The Court of Appeal found that this analysis involved two factual disputes that needed to be determined at the trial court: (1) whether service technicians were required to commute with tools and parts in their personal vehicles, and (2) the volume of tools and parts service technicians were required to carry in their vehicles while commuting.

 

The level of control an employer has over its employees is often determinative in wage cases. As Bryan Schwartz Law as written about before here, the Supreme Court in Dynamex Operations West, Inc. v. Superior Court of Los Angeles held that workers in California are presumptively employees of those for whom they labor. See 4 Cal. 5th 903 (2018). Among other factors, they must be free from the control and direction of the hiring entity to be considered an independent contractor in wage and hour cases.

 

With commute times in California being some of the worst in the nation, being properly compensated for time commuting that is under the control and in the service of the employer would make a big difference in workers’ paychecks.

 

Bryan Schwartz Law has written about compensation for commute times and wage and hour issues before. If you believe you are owed wages, please contact Bryan Schwartz Law today.

Monday, June 15, 2020

Victory! U.S. Supreme Court Rules that Employers Cannot Discriminate Against Their Employees for Being LGBT




Today, the Supreme Court ruled that Title VII protections apply to lesbian, gay, bisexual, and transgender workers. Title VII was created in 1964 and prohibits employment discrimination based on race, color, religion, sex, and national origin. After hearing oral arguments for three cases last October, the Court ruled in a 6-3 decision that prohibited discrimination “because of sex” under Title VII also extends to LGBT workers.  This landmark ruling is a huge victory for employees and the LGBT movement. 

Before Monday’s ruling, employees in more than half the states could be fired for being LGBT. The three cases discussed before the Supreme Court involved two gay men and one transgender woman, all of whom were terminated immediately after their employer discovered they were LGBT. Gerald Bostock was an award-winning child welfare advocate in Georgia but was fired after his employer found out he participated in a gay recreational softball league. Donald Zarda, a skydiving instructor in New York, was fired days after mentioning he was gay to a client. Aimee Stephens, a transgender woman working at Harris Funeral Homes in Michigan, was fired after announcing she planned to “live and work full-time as a woman.” 

The Court’s decision was surprising to most, as Justice Gorsuch, appointed by President Trump, wrote for the Court. Justice Gorsuch was joined by Republican-appointee Chief Justice John Roberts and Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan. The majority found that Title VII’s “because of sex” was originally enacted with protections for LGBT employees in mind. Further, even if an employer’s ultimate goal is to discriminate against its employees on the basis of sexual orientation, the employer intentionally treats an employee worse based on that individual’s sex along the way. For example, if two identical employees are attracted to men, and the employer fires the male employee for no other reason other than the fact he is attracted to men, the employer discriminates against him for traits it tolerates in its female employee. The Court found that this is simply discrimination based on sex, with Justice Gorsuch stating that this analysis “involve(s) no more than the straight-forward application of legal terms with plain and settled meanings.” 

Justice Gorsuch’s decision was surprising because of who appointed himbut, to the vast majority of Americans identifying with both political parties, it is clear that LGBT people in the workplace should not suffer discrimination because of their sexual orientation, i.e., because of sex. In fact, according to The New York Times, 90% of Democrats and 74% of Republicans believe it should be illegal for employees to be fired based on sexual orientation. Similarly, 86% of Democrats and 69% of Republicans believe it should be illegal for employees to be fired for being transgender.

Justice Samuel Alito and Clarence Thomas joined in a dissent out of touch with what the American public has long believed, arguing that the Court was wrongly stepping into the shoes of legislators. Justice Alito stated that if Congress wanted Title VII to include protections for the LGBT population, it would have amended the statute to explicitly include “sexual orientation” or “gender identity.” Meanwhile, in a separate dissent, Justice Kavanaugh focused primarily on statutory interpretation and argued that the majority failed to analyze appropriately the “ordinary meaning” of Title VII. 

The Court’s decision resolved a split among federal circuit courts, with the Eleventh Circuit previously holding that sexual-orientation-based claims were not actionable under Title VII but the Second, Sixth, and Seventh Circuit reaching the contrary decision. In Bostock’s case, the Eleventh Circuit upheld the district court’s dismissal of Bostock’s complaint due to a previous panel holding that found Title VII did not apply to sexual orientation claims, holding that “under [the] prior panel precedent rule, we cannot overrule a prior panel’s holding, regardless of whether we think it was wrong.” The prior panel had explained, “[d]ischarge for homosexuality is not prohibited by Title VII,” highlighting that no Supreme Court decision had ever “squarely address[ed] whether sexual orientation discrimination is prohibited by Title VII.” Evans v. Georgia Reg'l Hosp., 850 F.3d 1248, 1255-56 (11th Cir. 2017) (citing Blum v. Gulf Oil Corp., 597 F.2d 936, 938 (5th Cir. 1979)). Similarly, the district court in Stephen’s case stated that “neither transgender status nor gender identity are protected classes under Title VII.” E.E.O.C. v. R.G. & G.R. Harris Funeral Homes, 201 F. Supp. 3d 837, 861 (E.D. Mich. 2016). In his dissent in Zarda v. Altitude Express, Inc., the Second Circuit case finding that sexual-orientation-based claims were actionable under Title VII, Judge Gerard E. Lynch stated, “I would be delighted to awake one morning and learn that Congress had just passed legislation adding sexual orientation to the list of grounds of employment discrimination prohibited under Title VII[, but when] I actually woke up[, I] realized that I must have been still asleep and dreaming. Because we all know that Congress did no such thing.” 883 F.3d 100, 137 (2d Cir. 2018). With the Supreme Court’s decision today, we can wake up knowing that we all have the right to be protected against employment discrimination under Title VII.


In his opinion, Justice Gorsuch wrote that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” We agree. To the tireless activists—including Mr. Zarda and Ms. Stephens, both of whom passed away before this decision could be published—and decades of LGBT activism that led to this momentous decision today, we thank you and look forward to ensuring employers adhere to this ruling in the years to come.

Bryan Schwartz Law celebrates today’s important decision. The firm has written about Title VII many times before. If you believe you were discriminated against on the basis of sex, please contact Bryan Schwartz Law today.

Thursday, June 4, 2020

Are You Employed in Retail? The Administration is Threatening Your Overtime Pay

Recently, the U.S. Department of Labor (“DOL”) issued a final rule that would seek to deprive large numbers of employees overtime wages. The Administration’s action eliminates helpful guidance about the types of employees who are not considered to work in “retail” and would presumably be entitled to overtime under the federal Fair Labor Standards Act (“FLSA”). Employees considered “exempt” from the FLSA do not benefit from its minimum wage and overtime pay requirements. Exempt workers usually include executive, administrative, or professional employees who meet the tests—including the salary-based test—for the exemption. “Retail” workers may also be considered exempt and be paid on a commission-only basis. For nearly 60 years, the DOL had a list of industries presumably excluded from “retail” as having no “retail concept” – like banking. The Administration’s action would seek to short-change these hundreds of thousands or millions of workers of their overtime.



More specifically, pursuant to Section 7(i) of the FLSA, certain employees paid primarily on commission in the retail and service industries have long been considered exempt from overtime benefits. To qualify for this exemption, the employee must have been employed by a “retail or service establishment,” which the DOL consistently interpreted as an establishment with a “retail concept.” Such establishments typically “sell[] goods or services to the general public,” “serve[] the everyday needs of the community,” “[are] at the very end of the stream of distribution,” dispose their products and skills “in small quantities,” and “do[] not take part in the manufacturing process.” Implementing this interpretation, the DOL maintained lists of establishments that could not claim the overtime exemption: (1) those that the DOL viewed as having “no retail concept” and were always ineligible to claim the exemption (such as banks, certain dry cleaners, tax preparers, laundries, roofing companies, and travel agencies), and (2) those that “may be recognized as retail” but were potentially ineligible for the exemption on a case-by-case basis (such as auto repair shops, hotels, barber shops, scalp-treatment establishments, taxidermists, and crematoriums).

The DOL’s new rule eliminates these lists that provided helpful guidance for more than half a century of what types of establishments could claim the overtime exemption. Employers that previously fit into these categories may now try to assert that they have a retail concept and may qualify for the overtime exemption.  According to the Administration, this rule provides greater simplicity and flexibility to retail industry employers because the DOL will now apply the same “retail concept” analysis to all businesses. 

We disagree. This rule may be used by employers to attempt to justify paying their workers on commission without overtime, which means employees working longer hours with less pay. Retail workers already have a low median annual income of about $29,000 according the U.S. Bureau of Labor Statistics and are subject to wage and hour abuses. The new rule simply adds confusion around long-standing FLSA guidance for employers and employees about who can and cannot qualify for overtime provisions. The DOL made this decision without a notice and comment period, stating that no such period is required since both lists were interpretive regulations originally issued without notice and comment in 1961. Some attorneys question the propriety of the DOL’s decision. 

Courts may disregard this rule change. The DOL’s interpretations and lists are not binding on courts but can serve as guidance and, in the past, have been afforded some deference. However, when the Administration casts aside tried-and-true guidance to support the political agenda of the moment, seemingly without undergoing any rigorous process or study, such a move will be entitled to no deference under Perez v. Mortgage Bankers Association. 135 S.Ct. 1199, 1208 n.4 (2015) (highlighting that an agency’s interpretation that conflicts with a prior interpretation of a regulation is entitled to considerably less deference than a consistently held agency view). Workers’ rights advocates anticipate that when the Administration changes – hopefully soon – helpful guidance will be restored distinguishing true retail from many other industries that would opportunistically try to claim an exemption where none should exist.

Bryan Schwartz Law has written about the Trump Administration’s antipathy toward workersDOL shifts, and overtime before and remains committed to protecting workers’ wages. If you were denied overtime pay you believe you were owed, contact Bryan Schwartz Law today.

Tuesday, June 2, 2020

White Silence is Violence



Ahmaud Arbery. Breonna Taylor. Christian Cooper. George Floyd. David McAtee.

The lasting power of white supremacy is once again on full display. All of us – especially those benefiting from a legacy of white privilege – have an obligation to end this reign of terror. As civil rights lawyers, we at Bryan Schwartz Law feel a special duty to respond.

Our work as lawyers hinges on a core belief in the rule of law and the power of the law to organize society in a way that protects and provides for its people. The events of the past weeks are a painful reminder that the rule of law is not evenly applied. Yesterday, the president ordered police to tear gas protestors at the White House so that he could get a photo holding a bible in front of a church (whose bishop, by the way, was not warned of nor condoned his visit). When police and other government actors contribute to the abrogation of vital protections (like our First Amendment freedoms of speech, association, and assembly, and anti-discrimination laws) or selectively enforce laws as a way to subjugate people, we as lawyers have an obligation to step in and push our legal system to correct course.

That includes intervening in every sphere of life where white supremacy is present, including employment. While California is home to some of the most progressive employment laws in the nation, there is also a seemingly endless stream of cases of Black employees being denigrated and abused in the workplace, one of which is our class-action race discrimination and harassment case against Tesla.

When clients first come to us, their faith in the law has generally been shaken. They have been wronged; their rights have been violated. It is a special duty and honor to be able to say, we hear you, we are with you, we will stand beside you, and we will fight for you.

And so today we say: Black Lives Matter and fight white supremacy. The struggle for racial justice is real and it is long. We will continue to lend our talents and treasures to the struggle to defeat racism in all its forms.

Thursday, May 14, 2020

Whistleblowers—Public Heroes in an Uncertain Time for Workplace Safety


This morning, Dr. Rick Bright is testifying on Capitol Hill. Dr. Bright is known for being fired from the Biomedical Advanced Research and Development Authority for opposing the use of a drug falsely touted by Trump as a possible coronavirus treatment. His testimony today, which is in progress during this writing, has emphasized safety measures he believes the federal government should be making to prevent the spread of the deadly disease.

The current COVID-19 pandemic has heightened the importance of whistleblowers such as Dr. Bright reporting workplace safety like never before. Workers who still must report to a physical work site depend on their employers taking serious and effective measures to protect them. While many conscientious employers engage in such safety practices, others have thrown their employees under the bus, forcing them to risk their health for the companies’ profits—literally profiting off the lives of their workers.

Perhaps the most famous heroic COVID-19 whistleblower is China’s Li Wenliang, a doctor who sounded the alarm about the seriousness of the virus in its early days only to be sanctioned by the Chinese government and later die of the illness. Beyond Dr. Bright, the United States has seen its fair share of whistleblowing as well, especially concerning unsafe working conditions. Holding employers accountable for workplace safety is paramount during the pandemic, given that the workplace is one of the places where the virus is most likely to spread. Whistleblowing employees are necessary to bring employer safety inadequacies to light.

But despite the importance of whistleblowing during these times—or perhaps because of it—the government and private companies have fired employees in retaliation for blowing the whistle. Like the federal government's termination of Dr. Bright, Amazon, one of the most powerful and wealthiest companies in the world, fired several warehouse employees, including Staten Island’s Christian Small, for raising concerns about workplace safety and attempting to organize a response. This prompted former Amazon VP Tim Bray to resign “in dismay” because of the company’s decision to fire whistleblowers. Bray noted in an open letter that the six or so whistleblowers who faced retaliation from Amazon at that time were all people of color, women, or both. At the end of the letter, Bray decried power imbalances in the workplace, writing that “warehouse workers are weak and getting weaker…[s]o they’re gonna get treated like crap….” Amazon has profited during the pandemic.

Other employees throughout the country have similarly faced retaliation for raising workplace safety concerns. An emergency room physician in early hard-hit Washington State, Ming Lin, was fired for giving a newspaper interview about his concern that his employer had inadequate testing and protective equipment. Navy aircraft carrier captain Brett Crozier was fired for writing a letter about the Navy’s failure to provide him with sufficient means to combat the virus (he later contracted it). Nurse Lauri Mazurkiewicz was fired for emailing her colleagues that that N-95 masks were more effective at protecting against the disease’s spread than the masks provided by the hospital where she worked, then wearing an N-95 mask to work—she has since filed a lawsuit.

It is especially wrong for employers to retaliate against whistleblowers, given the historic state of unemployment—jobs are precious and hard to come by for terminated whistleblowers trying to feed their families. Now more than ever, whistleblower protection laws are vital, as work environments have become less safe at employment sites where employees’ health is not taken seriously enough. For instance, meat packing plants, deemed essential by the Trump administration and already dangerous working environments even in the absence of COVID-19, are hotbeds for the virus to spread, leading to public concern and at least one federal lawsuit. Nursing homes, especially those who serve indigent or lower-class senior citizens, have been hit hard. Essential retail stores, such as grocery outlets, have also been seen suddenly dangerous working conditions. 

Employees at workplaces like these are understandably concerned about workplace safety. Consequently, thousands of employees have courageously filed workplace safety complaints against their employers related to the coronavirus. These complaints have involved poor safety practices such as failing to provide personal protective equipment like gloves, masks, disinfectant, and cleaning supplies; failing to follow or implement social distancing requirements; forcing employees to work alongside sick co-workers; and requiring employees to report to work on-site in non-essential sectors. Recently, the CDC revised its guidelines to allow asymptomatic workers to continue working, which may lead to further workplace safety issues as asymptomatic carriers infect their coworkers.

Concerned employees can file workplace safety complaints with the federal Occupational Safety and Health Administration (OSHA), the corresponding California state agency Cal/OSHA, or their local county health departments if the county has a separate health order in place. 

Now, more than ever, we need heroes willing to step forward. One of the only good bits of news in this pandemic has been that heroes are emerging like never before to protect their colleagues, themselves, and their families.  

Do not let the fear of unlawful retaliation stop you from blowing the whistle. If you face workplace retaliation for raising safety concerns, contact Bryan Schwartz Law

Friday, May 8, 2020

What happens to workers, workers’ rights, and their advocates in a pandemic?



A look at both old and new laws that will help us protect workers’ rights in the age of COVID-19


(This article was first published in Plaintiff magazine, May 2020 edition)

By Bryan Schwartz and Jinny Kim

Maybe we never expected to be helping clients from our living room recliners, between organizing videoconferences for our kindergartners and answering questions on mobile technology and “what’s for dinner?” from our middle and high schoolers. But, few of us expected a lot of things that are happening now. Though our work lives have been impacted, many of our clients’ lives have been upended far more dramatically. Their challenges keep us fighting, even as new hurdles are placed in our paths.

In this article, we discuss the contours of Pandemic World for plaintiffs’ employment lawyers – how our practices have been affected by COVID-19, and then how our clients’ rights are developing.

Practicing in unpracticed ways

In practicing law, the wise know the precedents – knowing what happened years ago helps us decide what to do now, on this case. Yet, suddenly how we practice law is new for many of us. This must have been what the old guard felt like when Westlaw, Lexis, and other types of online legal research became available and bookcases of yellow books with yellowing pages became more ornamental than fundamental to our law practices.

We have to look forward, rather than looking back – the remote practice of law might become an additional arrow in our quiver, rather than an inconvenience. Could we hire more lawyers and support staff, with less office space and travel costs in the future? For now, everything is Zoom and Hangouts and GoToMeeting and we feel like we are all getting to know each others’ living rooms and pets and kids and sweatshirt collections.

Beyond the obvious differences – that we are all communicating remotely with our colleagues using a host of new technologies – our law practices have been affected by court closures, stalled discovery, defendants becoming insolvent, changes in how we conduct depositions and mediations, frozen hiring of new lawyers and law clerks, and in myriad other ways. The question is how to keep up the pressure on defendants and their counsel – plaintiffs’ attorneys’ number one job – when so many of our usual weapons are holstered.

Keep pressing

Some defendants have had operations overwhelmed by COVID-19 – health care providers, for example – and one can readily sympathize with a need for a time out. Other defendants, however, seem cynically to be commandeering the coronavirus “opportunity” to delay what previously they could not stall. Your blessed motion to compel hearing date would finally be arriving, after 20 meet-and-confers, an informal discovery dispute process, several flimsy supplemental productions by defendant trying to derail your motion, hundreds of pages of briefing and separate statements and attachments and exhibits. And now? Off-calendar, with no court date in sight. Defendant rides hard the newest excuse in the playbook – that the virus is inhibiting its ability to do what it was already avoiding for many months before the virus. What can we do?

Never stop. Call and email every day, cell and office numbers and addresses, maybe twice a day. Keep the guns blazing, secure in the knowledge that all over, plaintiffs’ attorneys are hearing the same thing. While being empathetic to legitimate health and safety concerns, we call foul on this like we do with other nefarious employer practices. If the court is accepting filings (even if it is not processing them speedily), then keep filing. Meanwhile, keep taking new cases – as we discuss below, there are as many (or more) violations now than in pre-Pandemic World.

The good news – cases are settling

Unlike many of our clients whose employers are shuttered and who are laid off indefinitely, we attorneys can do this work remotely with the new technologies.

Top mediators are reporting great success rates at Zoom mediations. Said one, “I have settled every one I’ve done in the past three weeks, many by 3:00 p.m. or 4:00 p.m. Ironically, it seems like people are more invested in getting serious earlier and getting it done as soon as possible; maybe because they have childcare issues at home, smell dinner cooking in the background, want to get to their Covidtini – whatever it is, it seems to be working.”

The lesson: keep scheduling mediations, especially with mediators you know and trust. While it may be harder to develop trust relationships with unknown quantities, you can still get cases settled with your go-to mediators.

Court reporting services have pivoted to remote depositions. Keep scheduling them – especially for witnesses who are not the core wrongdoers. There seems to be no downside to defending plaintiffs and our witnesses remotely (apart from the inability to kick your client under the table). Some defendants will not agree to remote depositions – perhaps soon the courts will require parties to comply with remote depositions, like the courts have recently forced employers’ hands with electronic service (https://newsroom.courts.ca.gov/news/judicial-council-mandates-electronic-service-of-documents-in-most-civil-cases).

The bad news – employers in financial trouble

A typical message some plaintiffs’ lawyers are receiving is this recent one: “I have not been able to discuss this with my client. Moreover, one key issue is that I am unsure about the continued viability of an offer including reinstatement given the [employer’s] developing financial condition. I will follow up as soon as I have some more information.” Another defendant said, “who knows where the employer will be in three months with COVID - they could be out of business.”

While many of us are accustomed to poverty pleas from defendants even in the best of times, now unquestionably these are a common feature of our landscape. Though many businesses are currently avoiding bankruptcy with the government’s massive cash infusion into the economy, soon, we will start to see a wave of failing businesses. Line up your bankruptcy lawyers now because they will be busy later in the year! Many businesses will fail and not have bankruptcy filings, trying to come out on the other side of this pandemic, but many others will try to pull through. Even now, bankruptcy courts are conducting hearings, remotely.

Generally, confusion abounds about which courts are accepting which types of filings, and details on courts’ different Pandemic World approaches are beyond the scope of this article. (In any event, such information would be outdated by the time you read this!) Check each court’s website for this week’s latest updates. Plaintiffs’ attorneys should continue to seek tolling agreements, though certainly with courts closed, it is likely that many exhaustion deadlines are continued. The smart play is – as usual – exhaust and file as early as you can, wherever you can, rather than letting the clock run.

We are all being forced to make some hard decisions. With trial dates far in the distance, and many businesses in treacherous financial waters, the smart play in many cases may be to get the sure money for your client today where you can, instead of holding out for the best-day outcome. Many of our clients need the money, now.

The bad news is far worse for our clients who are out of work and whose rights have been violated, than it is for us. Following are some of the protections and claims we are discussing with them every day.

Sick leave

With the closing of offices, schools and childcare centers around the country, many workers are suddenly juggling work and family obligations – in the home – while focusing on staying healthy and safe. The COVID-19 crisis highlights and supplements the complex and confusing patchwork of programs and laws that protect workers’ jobs and income when they cannot work because they are sick, caring for family members who are sick or caring for children whose schools and childcare centers are now closed.

Existing California law can be used by sick workers, workers who need preventative care relating to COVID-19 or are caring for sick family members, including when public authorities recommend quarantine or self-isolation.

California law requires that all workers have access to at least three paid sick days each year. Local laws provide more paid sick days including for those workers in Berkeley, Emeryville, Los Angeles, Oakland, San Diego, San Francisco and Santa Monica.
Qualified California workers also have access to an existing State Disability Insurance and Paid Family Leave program that allows workers who are unable to work because of their own disability or because they are caring for a family member who has a serious health condition to receive wage replacement benefits. This program is entirely employee funded and provides wage replacement benefits at 60 or 70 percent of a worker’s normal pay.
Many employees can access twelve weeks of job-protected unpaid leave under the Family Medical Leave Act (FMLA)/California Family Rights Act (CFRA) for an employee’s serious health condition, such as COVID-19, or to care for a family member with a serious health condition. To qualify for coverage, an employee must work for an employer with at least 50 employees within 75 miles of their worksite; have worked there for at least one year; and have worked for a minimum of 1,250 hours in the year prior to taking time off. Because of these stringent requirements, 40% of workers – primarily low-wage earners – are not covered.

For employees who do not meet the requirements of the FMLA/CFRA and have a qualifying disability or medical condition, a leave of absence may be a reasonable accommodation under the Americans with Disabilities Act (ADA) or California’s Fair Employment and Housing Act (FEHA).

Families First Coronavirus Response Act

Through the end of the year, employees who work for employers with fewer than 500 employees, are entitled to two weeks (up to 80 hours) of paid sick days paid directly by their employer but reimbursed by the Federal government through the Families First Coronavirus Response Act (FFCRA). These paid sick days are available to current (not furloughed or laid off) employees who have been told to self-isolate, quarantine, or are seeking medical attention because of COVID-19-related symptoms or to employees who are caring for a family member based on these same reasons.

Employees can also use these paid sick days if they cannot work due to caring for a child whose school or place of care has closed down. Employees who use paid sick days to care for themselves will receive full pay of up to $511 per day. Employees who use paid sick days to care for a family member or a child whose school or childcare is unavailable will receive 2/3 of their pay of up to $200 per day.

FFCRA also narrowly expands the FMLA by providing up to an additional 10 weeks of paid leave only for employees who need to take care of children who cannot go to school or daycare. This narrow expansion of the FMLA does not cover employees who actually have COVID-19 or to care for family members who have COVID-19.

Exemptions from FFCRA

Employers with fewer than 50 employees can seek an exemption from the paid sick days provision of the FFCRA if it “would jeopardize the viability of the business as a going concern.” Health care workers (which is very broadly defined) and first responders may also be exempt from both the paid sick days and the expanded FMLA provisions of the FFCRA. The Department of Labor itself estimates that 9 million health care workers, 4.4 million first responders and 96% of firms are exempt from coverage. (https://www.federalregister.gov/documents/2020/04/06/2020-07237/paid-leave-under-the-families-first-coronavirus-response-act#p-187)

Enforcement of the FFCRA will depend on what part of the FFCRA you want to challenge. An employer violating the FFCRA’s paid sick leave requirements is considered to have failed to pay the minimum wage under the Fair Labor Standards Act. An employer who violates the FFCRA’s expanded FMLA provision can be sued under the FMLA itself for failure to provide leave, failure to reinstate, discrimination, or retaliation. However, employees may have no private right of action for the FFCRA’s expanded FMLA provision if the employer was not already subject to the FMLA (e.g., employers with fewer than 50 employees).

While the FFCRA will provide a crucial lifeline for those who qualify, a huge percentage of the workforce will not benefit from the legislation. Therefore, states and municipalities are filling in the gaps. To date, Emeryville, Los Angeles, San Francisco and San Jose have passed their own ordinances to offset the shortcomings of the FFCRA by mandating paid sick time for employees of large corporations (500+ employees). In addition, Governor Newsom recently issued an executive order which provides two weeks of paid time off for isolation, quarantine and other medical directives to California workers in the food industry, including farm and agricultural workers, grocery and fast food workers, and delivery workers.

Layoffs, furloughs and the WARN Act

Due to the coronavirus pandemic, millions of workers across the country are getting laid off, furloughed, or outright terminated.

While most workers in California are considered at-will, some workers have contracts with their employer which set forth termination procedures requiring notice and severance. Employers who fail to fulfill their contractual obligations could face a breach of contract action which would make them liable for lost wages, future wages, and general or special damages.

Employers must pay terminated employees with their final paycheck, accrued vacation pay and required unemployment and COBRA documentation. The failure to do so can subject an employer to waiting-time penalties (under Labor Code section 203), civil and criminal penalties, and attorneys’ fees.

On March 17, 2020, Governor Newsom issued Executive Order N-31-20 which temporarily suspends the 60-day advance notice required under the California Worker Adjustment and Retraining Notification (WARN) Act for a layoff, relocation or termination of 50+ employees, in a 30-day period at a business that employs 75 or more employees. The temporary suspension must be for COVID-19-related “business circumstances that was not reasonably foreseeable at the time that notice would have been required.” Notice is still required but only “as much notice as practicable.” Employers can owe 60 days of backpay and benefits for the period of violation as well as attorneys’ fees for failure to provide adequate notice.
Employers are also on the hook to the state for civil penalties in the amount of $500 per day of delay, as well as attorneys’ fees. Certainly, for any mass layoff, plaintiffs’ attorneys should determine if disparate impact claims can be brought on behalf of a protected class such as older workers or workers with disabilities.

A furlough is different from a layoff – an employer-initiated unpaid leave of absence. Furloughed employees must be paid for all work performed and should not be working (including checking email or voicemail) during the furlough. According to an opinion letter by the Department of Labor Standards Enforcement (the California agency charged with enforcing wage and hour law), a furlough without a definite return to work date within the shorter of 10 days or the employee’s normal pay period may be a termination requiring the payment of final wages. A furlough exceeding a de minimis amount of time could trigger WARN Act obligations. (See Int’l Brotherhood of Boilermakers, et al. v. NASSCO Holdings, Inc. (2017) 17 Cal.App.5th 1105.)

Unemployment insurance — up to $1,050 a week

According to Department of Labor data, nearly 17 million, or one in ten, American workers applied for unemployment insurance between March 15 and April 4. (https://www.dol.gov/ui/data.pdf) This does not include workers affected by the coronavirus pandemic but who may not be eligible for regular unemployment insurance, such as independent contractors and those forced to quit because of lack of childcare.
In California, under the existing unemployment insurance (UI) benefits program, qualified employees can receive between $40 and $450 per week depending on their work history and how much they are able to still earn. To qualify for UI, employees must: be out of work or underemployed through no fault of their own; have enough past wages; and be able, available, and willing to work.

On March 27, Congress passed the $250 billion Coronavirus Aid, Relief and Economic Security (CARES) Act which created three new programs:

(1) Pandemic Unemployment Assistance (PUA) which provides up to 39 weeks of emergency unemployment assistance to workers who do not qualify for regular state unemployment insurance – including self-employed workers, independent contractors, and freelancers – or who have exhausted their state UI benefits; 
(2) Pandemic Unemployment Compensation (PUC) which provides all regular UI and PUA  claimants with an additional $600 payment per week through July 2020; and 
(3) Pandemic Emergency Unemployment Compensation (PEUC) which provides an additional 13 weeks of state UI benefits until December 31, 2020, unless it is otherwise extended.

As expected, California and other states are scrambling to set up the infrastructure
to administer the federal program. The Employment Development Department will accept online applications for PUA beginning April 28. (https://edd.ca.gov/about_edd/coronavirus-2019/pandemic-unemployment-assistance.htm).

Health and safety

As most Americans shelter in place, front-line workers are still providing critical care and support, risking their own health and safety and that of their loved ones. These essential workers include health care employees, grocery and pharmacy employees and employees of shipping companies. Many workers needlessly lost their lives. In order to stop tragedies from endlessly repeating, employers must take appropriate measures to provide employees with safe and healthy work environments. Thousands of employees have filed workplace safety complaints against their employers related to coronavirus, due to lack of Personal Protective Equipment (PPE) (e.g., gloves, masks and cleaning supplies), failure to follow social distancing requirements, and being forced to work alongside sick co-workers.

The CDC’s reversal of guidance for essential workers, allowing asymptomatic workers to continue working, will only expose others to coronavirus and escalate safety violations. (https://www.cdc.gov/coronavirus/2019-ncov/community/critical-workers/implementing-safety-practices.html)

Workers fear not only contagion, but retaliation for raising their concerns with their employers. Employees are being terminated for raising well-founded health and safety concerns to their employers. An employee terminated for exercising their OSHA rights has strong claims for wrongful termination in violation of public policy and Labor Code sections 1102.5 and 6310, in addition to the Labor Code Private Attorneys General Act (PAGA).

COVID-19 and Workers’ Comp

When a worker contracts COVID-19 on the job, they may be eligible for workers’ compensation benefits, including temporary disability payments and medical treatment. Illness due to the common cold or flu is not considered work related for purposes of workers’ compensation benefits, but diseases such as tuberculosis, Hepatitis A, and COVID-19 are considered work related. Employees may bring claims for negligence where a company fails to take reasonable measures to prevent the spread of COVID-19, and possibly a public nuisance claim.

In a memo to its members dated April 13, the Chamber of Commerce stated that “exposure liability” is “the largest area of concern for the overall business community.” (https://www.uschamber.com/coronavirus/implementing-national-return-to-work-plan#liability) The Chamber argues that lawsuits may send businesses and industries into bankruptcy, lobbying for blanket protections against coronavirus-related claims and procedural reforms. (Ibid.)

Instead, we should have legislation providing real protections to critical workers who remain on the job. Until that happens, workers will continue to work without access to PPE, get fired for asserting their rights, and will ultimately put their health, safety, and many lives at risk.

Disability

Employees who work for employers following the guidelines of the Centers for Disease Control (CDC) and local public health authorities are still entitled to worker protections under the ADA and FEHA, including reasonable accommodations, non-discrimination based on disability, and prohibitions against medical examinations and inquiries.
Both the Equal Employment Opportunity Commission (EEOC) and the Department of Fair Employment and Housing (DFEH) have issued coronavirus guidance: “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act” (https://www.eeoc.gov/facts/pandemic_flu.html) and the “DFEH Employment Information on COVID-19.” (https://www.dfeh.ca.gov/wp-content/uploads/sites/32/2020/03/DFEH-Employment-Information-on-COVID-19-FAQ_ENG.pdf) The EEOC has also published technical assistance questions and answers entitled, “What You Should Know about COVID-19 and the ADA, Rehabilitation Act, and other EEO laws.” (https://www.eeoc.gov/eeoc/newsroom/wysk/wysk_ada_rehabilitaion_act_coronavirus.cfm) 

The EEOC and DFEH have not yet found COVID-19 to be a disability requiring reasonable 
accommodations.

Both the EEOC and DFEH guidance make clear that medical testing such as temperature checks and asking employees directly about symptoms and diagnoses are allowed. Employers may report diagnosed coronavirus cases to public health officials, while ensuring that medical privacy is maintained.

While some employers have previously been resistant to granting telework as a reasonable accommodation, asserting that physical presence is an “essential job function,” many employers will be hard-pressed in the future to argue that telework as a reasonable accommodation is an “undue burden,” since so many of us are now doing it routinely.

Discrimination claims

The COVID-19 pandemic has reportedly resulted in violent attacks, harassment, and discrimination against Asian-Americans and other people of Asian descent in workplaces across California, and litigation is commencing concerning these actionable claims.
An employer cannot exclude certain subsets of workers based upon protected classifications, due to a concern about COVID-19 transmissions. An employer can be liable for any failure to take reasonable steps to prevent and promptly correct discriminatory and harassing conduct. Discrimination based on association (including marriage or co-habitation) with someone based on race or national origin is also unlawful. (See DFEH FAQ at 2.) 

Workplace discrimination based on marital status is actionable under the FEHA. As one example, an unmarried worker’s request for scheduling accommodations due to childcare was denied while her married counterpart was granted a similar scheduling request.

As plaintiffs’ attorneys, we should also prepare for disparate treatment litigation around other protected categories including marital status, pregnancy, and age. The CDC has identified older people and pregnant workers as vulnerable populations more likely to experience severe symptoms, but employers still cannot discriminate (including terminate, furlough or withdraw a job offer) simply because a worker is pregnant or older.

Conclusion

We are all alternating between anxiety, helplessness, boredom, incredulity, and occasionally, hope. How long will Californians be sheltering in place? Are we flattening the curve of the pandemic? Will our favorite establishments still be around a few months from now? And, perhaps most importantly for our clients – how many of us will be out of work in the coming months? Our job as workers’ rights advocates is to keep up to date with rapidly changing government agency guidelines and Judicial Council updates that affect our clients. They are counting on us to jump every new hurdle as we keep prosecuting their claims.

Bryan Schwartz has an Oakland-based firm representing workers in class, collective, and individual actions in discrimination, wage/hour, whistleblower, and unique federal and public employee claims. He practices in state and federal trial and appeals courts, in arbitration, and before a variety of administrative agencies. He is past Chair of the 8,000+ State Bar Labor and Employment Law Section (now called California Lawyers Association), and on the Board of Directors of Legal Aid at Work, and the Foundation for Advocacy, Inclusion and Resources (FAIR), and is a former Board member of the California Employment Lawyers Association (CELA). He is a regular speaker, moderator, and conference co-chair on employment law issues, and a frequent contributor to Plaintiff magazine and other publications.

Jinny Kim directs the Disability Rights Program at Legal Aid at Work, where she represents clients seeking accommodation and facing discrimination by employers, educational institutions, and public entities. She joined Legal Aid at Work as the Félix Velarde-Muñoz Fellow in 1999-2001 and litigated race, disability, national origin, and gender cases. She returned as a staff attorney in 2008 following work in Washington, D.C., and in private practice. As a Georgetown Women’s Law and Public Policy Fellow, she served as Labor Counsel to the late Sen. Edward Kennedy on the Senate’s Committee for Health, Education, Labor and Pensions. She also has held positions at Asian Pacific Islander Legal Outreach; at Schneider, Wallace, Cottrell, Brayton and Konecky; and at Goldstein, Demchak, Baller, Borgen & Dardarian. Jinny received her J.D. in 1999 from the University of California, Davis, and her B.A. in 1995 from the University of California, Berkeley.