SDEA’s 42nd Annual Employment Law Update
Thank you to all who attended our 2022 Employment Law Update. We had a full zoom conference to hear about the newest legislation and court verdicts that will impact our employment practices for 2022 and beyond.
Of course we would like to thank our sponsors who provided our attendees with great options and important information for their organizations.
Evan Peña, partner at Paul Plevin Sullivan and Connaughton, started day one discussing “hot topics” in 2021, which may look familiar from past years…Wage and Hour, Arbitration, Disability Accommodations and Covid (you will see that Covid was a popular theme again this year).
The first case that Evan discussed was Donohue v. AMN Services, LLC where Donohue sued the company for meal period violations. AMN used rounding for timekeeping purposes, which is permissible in California, but NOT for meal periods. Read that again – if your company uses rounding for timekeeping, it is impermissible to round meal periods. As this case showed, there is a presumption of meal period violation if meal periods are rounded and as a result record a meal period 30 minutes even if an employee clocks back in prior to the 30-minute mark. Evan suggested attestations to track meal periods that are short, late or missed altogether due to employee choice. Remember that meal period premiums are due, at the employee’s regular rate of pay, when an employee is not permitted a meal period at all, or if a meal period is not provided before the end of the fifth hour of work. The employer has burden of proof.
Evan addressed several cases where an employer did not provide reasonable accommodations for their employees who claimed a disability. One case, Brown v. Los Angeles Unified School District, involved a teacher who started experiencing headaches, nausea, and blurry vision after a new wi-fi system was installed. Takeaway: make sure you do everything you can to accommodate your employees. Engage in the interactive process, document your processes and take the term “without undue hardship” with a grain of salt.
Chris Olmsted, shareholder at Ogletree Deakins, then provided an overall update for 2022 and (you guessed it), along with new California laws, Covid was also a topic of discussion. In part, Chris shared the following new laws for 2022:
• SB 331 — Settlement and Severance Agreements which expands settlement agreement restrictions to include all forms of workplace harassment or discrimination (not just sexual as it was previously). SB 331 also requires the mandatory disclaimer, “Nothing in this agreement prevents you from discussing or disclosing information about unlawful acts in the workplace, such as harassment or discrimination or any other conduct that you have reason to believe is unlawful.” Severance agreements must also advise the employee of their right to consult an attorney and provide at least 5 business days to do so. If your company uses Settlement agreements, this is a good time to review and update the language.
• AB 1003 – Criminal Liability for “theft of wages” for intentional deprivation of wages (all compensation), with the knowledge that compensation is due. This can be prosecuted under state law at $950/employee or $2350 in aggregate over 12 months. Chris suggested training managers on wage law obligations, conducting regular audits of time keeping systems, and reinforcing complaint channels.
• AB 1033 – CFRA Expansion. Now that the California Family Rights Act applies to all employers with just five or more employees, this reminder will apply to most. AB 1033 expands reasons for leave to include parent in-law under the definition of “family member”. Employers will need to update their leave policies.
On day two of the Update, Carolina Bravo-Karimi, managing partner at Wilson Turner Kosmo, talked to the attendees about Microaggressions in the Workplace; how to recognize them and interrupt them. Carolina talked about microaggression “themes” that included color blindness, denial of personal racism/sexism/heterosexism, criminality/assumption of criminal status and the myth of meritocracy. She talked about the negative impacts of microaggressions and how to respond; either when you are the target or if you are a witness.
Lonny Zilberman, partner from Wilson Turner Kosmo, was next up on day two. Lonny shared the ever-popular Mistakes that Employers Made in 2021 and How to Avoid them in 2022. What were the jury verdict trends in 2021? PAGA and Wage and Hour claims dominated, followed closely by retaliation/whistleblower claims, disability discrimination, age discrimination, sexual harassment and race discrimination and harassment.
Many of the cases Lonny talked about had familiar names such as Postmates who was required to pay a $32M settlement for failure to reimburse their drivers for reasonable expenses; DoorDash required to pay a $100M settlement for misclassification, and Lime, a $9.5M settlement also for misclassification.
Lonny was clear that while these are large companies and large settlements, this can happen to any company, any time.
So where is the Covid update you ask? In summary, as of the writing of this article, the OSHA ETS is currently on hold and Cal-OSHA will not implement vaccine mandates (for now). Private employers may continue to require vaccinations and can ask employees to prove vaccination status. Of course, employers must to continue to engage in the interactive process when employees share that they cannot or will not get vaccinated due to religious or medical reasons.
While we continue to wait with bated breath for the inevitable signing to reinstate Covid sick pay, exclusion pay still needs to be paid for employees who test positive for Covid when the employee claims that they contracted it at work. Chris specifically stated that there is a presumption that the employee did, in fact, contract Covid at work unless it can be proved otherwise.
Remember SDEA is here WITH you! We are your strategic partner so lean on us as needed. We are just a phone call away, 858-505-0024.