California Peculiarities Employment Law Blog

Nonprofit Volunteers: We’ll work for free … unless we get hurt

Posted in 2015 Cal-Peculiarities

injured businessman in bandages and crutches with dollar pile and falling money vectorBy Ofer Lion

If your company is a nonprofit or has a nonprofit foundation, are you covered if something happens to your volunteers while they’re engaged in service to your organization?

The concern is real. There were 287 fatal occupation injuries among volunteers from 2003-2007. Prudent nonprofits carry insurance, called “volunteer accident insurance,” to cover injuries to volunteers.

Workers Compensation

There are significant differences in how states address workers’ compensation coverage for volunteers. Workers’ compensation coverage can limit employer liability for injuries to an employee or, in some cases, a volunteer.

Under California law, a nonprofit can opt into workers’ compensation coverage with respect to their volunteers. But absent such an affirmative election, volunteers for nonprofit organizations generally are excluded from the definition of “employee” and therefore are not covered by the workers’ compensation and insurance laws (Labor Code § 3352(i)).

“[A] person who performs voluntary service without pay for a private, nonprofit organization, as designated and authorized by the board of directors of the organization, shall, when the board of directors of the organization, in its sole discretion, so declares in writing and prior to the injury, be deemed an employee of the organization for purposes of [workers’ compensation and insurance] while performing such service.” (Labor Code § 3363.6(a)). As a result, opting into workers’ compensation coverage effectively requires an affirmative resolution of the nonprofit’s board to have volunteers be deemed employees for purposes of workers’ compensation and insurance coverage.

For this purpose, “ ‘voluntary service without pay’ shall include the performance of services by a person who receives no remuneration other than meals, transportation, lodging, or reimbursement for incidental expenses.” (Labor Code 3363.6(c)). A volunteer who is an “employee,” by a written declaration of the board, would be entitled to full coverage as an employee.

Nonprofits that do opt in may wish to contact their workers’ compensation insurer to preempt coverage disputes that may arise after an illness or injury claim is made by a volunteer. Workers’ compensation insurance premiums are often based on gross payroll amounts. Because volunteers are not paid, a different allocation could be requested by the insurer to increase premiums accordingly.

Workplace Safety

Nonprofits should seek to prevent injury to their volunteers (and employees) by providing a safe workspace. At a minimum, while the federal Occupational Safety and Health Act’s (“OSHA”) and California’s similar statute do not appear to protect volunteers, OSHA has indicated that its coverage provides that any charitable or non-profit organization that employs one or more employees must comply with OSHA’s requirements and regulations. In any case, the proper supervision of volunteers should include the provision of a safe working environment.

Workplace Solution

The use of volunteers by nonprofits comes with legal risks, including those arising from injuries that volunteers incur. Those nonprofits fortunate enough to have people willing to serve without compensation are advised to consider carefully the possible legal implications before accepting services from such individuals. Nonprofits with volunteers must provide safe workspaces, consider procuring volunteer accident and volunteer liability policies, and consider formally opting into workers’ compensation insurance, if available.

Edited by John Giovannone and Chelsea Mesa

Can that Doggie in the Window … Enter my Store?

Posted in 2015 Cal-Peculiarities

(Photo) Dog Outside WindowBy Andrew McNaught

Readers will recall that we recently corralled the law on “Assistive Animals” in the workplace, here. Now, in part two of our mini-series, we pony up an explanation of the rules governing the use of service animals by customers and patrons (as opposed to employees) in places of public accommodation, e.g., grocery or other stores, hotels, and movie theaters (as opposed to the workplace). While there are a few similarities, the California law covering service animals in places of public accommodation differ in significant ways from that governing such animals in the workplace. Reconciling these differences can be like herding cats, causing confusion for customers, employees, and employers that operate places of public accommodation. Please read on to ensure that when confronting these issues you will not be barking up the wrong tree.

What Is a “Service Animal,” Anyhow? While the workplace use of assistive animals is analyzed under the California Fair Employment & Housing Act and Title I of the federal ADA, the use of service animals by disabled individuals in places of public accommodation is governed by the California Unruh Act and Title III of the ADA. While some states define “service animals” more broadly, California (remarkably) adopts the more restrictive federal guidelines set forth in Title III. A “service animal” under Title III and California law is limited to any dog or miniature horse (yes, miniature horse) that is individually trained to do work or perform tasks for individuals with disabilities. Other species of animals—whether wild or domestic, trained or untrained—are not “service animals,” and are thus not permitted in places of public accommodation in California. So there is no special protection for the use of cats, rabbits, turtles, monkeys, llamas, or other animals sometimes said to provide service. See Patricia Marx, Pets Allowed, How to Take Your Pet Everywhere, THE NEW YORKER, (Oct. 20, 2014), http://www.newyorker.com/magazine/2014/10/20/pets-allowed.

As in the employment context, pets in the public accommodation context do not qualify as “service animals” unless they meet the criteria above. Moreover, while an assistive animal may be a “reasonable accommodation” for a disabled employee in the workplace, assistive animals need not be permitted in places of public accommodation if their sole function is to provide emotional support, comfort, therapy, companionship, or crime deterrence (even if they are dogs or miniature horses). So when a customer claims some entitlement to bring a “therapy ferret” or “comfort Chihuahua” into your place of public accommodation, you know that is horse-feathers. Continue Reading

What the Doctor Ordered? AB 304’s Cure For Sick Pay Law

Posted in 2015 Cal-Peculiarities, Sick Leave Series

Funny doctorBy Dana L. Peterson and Christopher Im

Just weeks before California’s Paid Sick Leave Law fully takes effect on July 1, 2015, the California Legislature has formulated amendments to what is officially known as the Healthy Workplaces, Healthy Families Act of 2014 (a frequent subject of our blogs).

The proposed amendments, appearing in Assembly Bill 304, would treat some of the Paid Sick Leave Law’s worst maladies. To read the full text of the proposed amendments, click here.

The amendments should be chicken soup for the soul of employers who have found cold comfort in the FAQs issued by the Labor Commissioner. (See CA Paid Sick Leave Update). And AB 304, first introduced in February 2015, now has an “urgency clause” (added on June 2), which would make the amendments effective as soon as Governor Brown signs the bill. Without the urgency clause, the amendments would not be effective until January 2016.

The key proposed amendments include: Continue Reading

2015 Employment Bills Moving Through The CA Legislative Process

Posted in 2015 Legislative Updates

(Photo) CA LegBy Kristina Launey, Christina Jackson, Brad Doucette

Thursday, June 5 marked the last day for bills to pass out of their house of origin in the California Legislature. Here is a summary of some key employment bills that made it through (followed by some significant bills that did not), and how they may affect California businesses if they make it all the way to the Governor’s approval with their current language.

Leaves of Absence

Paid Sick Leave. AB 304. We’re all watching Assembly Member Lorena Gonzalez’s attempt to clean-up some of the language in her Healthy Workplaces, Healthy Families Act of 2014, which took effect January 1, 2015, but which largely becomes operative July 1, 2015. On June 2, the Assembly approved inclusion of an urgency clause, which would allow the bill’s provisions to take effect immediately upon the Governor’s signing the bill; and exempts the bill from the house of origin deadline (the Assembly did not vote on it last week).

But, will the bill receive the Senate and Governor’s approval prior to July 1? It would have to move quickly, as would employers in adapting to these new provisions. Some key provisions in the current version of the bill are: (i) changing the rate of pay from a 90-day look-back to the regular rate, (ii) relieving employers of a duty to inquire or record the reason for an employee taking paid sick leave, (iii) allowing employers with unlimited time-off policies to comply with the written accrual notice by stating “unlimited” on the employee’s pay stub, and (iv) delaying until 2016 the written notice requirement for employers subject to Wage Orders 11 and 12. Look for an in-depth analysis on this bill here in coming days.

Meanwhile, Gonzalez’s AB 11, which would have included in-home support services under the definition of “employees” under the Healthy Workplaces, Healthy Families Act, did not make it out of the Assembly.

Kin Care. SB 579 seeks to amend California’s Kin Care law to tie its protections to the use of sick leave for the reasons specified in the Healthy Workplaces, Healthy Families Act of 2014. The bill also would expand coverage of California’s school activities leave (Family School Partnership Act) to include day care facilities and cover child care provider emergencies, and the finding, enrolling, or reenrolling of a child in a school or day care, and would extend protections to an employee who is a step-parent or foster parent or who stands in loco parentis to a child.

CFRA Leave. SB 406 would narrow the California Family Rights Act (“CFRA”) small business exemption. CFRA would now apply to businesses that employ 25—as opposed to the current 50 –within 75 miles. CFRA’s protections would also now extend to care for grandparents, all children (removing any age restriction), and grandchildren, as well as siblings, domestic partners, and in-laws.

Anti-Retaliation Continue Reading

From Backyard To Workplace: Corralling The Law On Assistive Animals (Part I)

Posted in 2015 Cal-Peculiarities

(Illustration) Dog Working.jpgBy Colleen M. Regan and Geoffrey C. Westbrook

Back in December 2012, the Fair Employment and Housing Commission (as it was then known) issued regulations greatly expanding protections to disabled job applicants and workers in California. The regulations require employers with five or more employees to permit “Assistive Animals” as a form of reasonable accommodation. These creatures include not only everyday service and signal dogs but any other “animal” providing emotional or other support to a person with a disability (with minimal additional qualifications). While support or assistive animals in the workplace are not new—they can get in the door under the Americans with Disabilities Act and other laws—California has substantially broadened their impact on day-to-day business. Below are a few tips to help businesses navigate this special breed of accommodation request.

There Must Be A Disability. California and federal accommodation laws naturally do not apply unless an employee has a disability. Where an assistive animal is sought as a reasonable accommodation, its justification will depend on the particular assistance the animal provides to enable the disabled individual to perform the essential functions of the job. Under California’s broad definition, any physical or mental condition limiting a major life activity (such as working, concentrating, and interacting with others) is sufficient to pass this initial hurdle. Employers may request certification from the employee’s health care provider, which broadly includes family therapists and social workers, stating that the employee has functional limitations requiring the presence of an assistive animal. Recertification of the need for a support animal may be done annually.

Household Pets Are Not “Assistive Animals.” At a minimum, all assistive animals must be trained to provide assistance for the employee’s disability, be free from offensive odors, display habits appropriate to the workplace, and not endanger the health or safety of others. Employers may require confirmation that the service animal meets these minimum requirements, but the regulations do not impose any formality. Challenges to the animal’s satisfaction of these standards may be made within two weeks of its entry into the workplace and only with “objective evidence of offensive or disruptive behavior.” Presumably, although the regulations do not speak to it, challenges after the two-week bar may be made if the service animal develops a new trait or threatens the safety of an employee.

Blanket No-Animal Policies Are Now Defunct. Employers must evaluate each request for accommodation on a case-by-case basis. Requests to use assistive animals must be given the same consideration. And where multiple effective accommodations to a disability are available, an employee’s preference to use an animal over alternatives should be given deference, absent undue hardship to the employer. An employee with a disability does not have an automatic right to have an assistive animal in the workplace; a thoughtful interactive process must sort out which accommodations are reasonable and do not cause undue hardship. Policies forbidding or even discouraging assistive animals as a form of reasonable accommodation should be revisited.

Has the “cat got your tongue?” The wide-ranging practicalities of bringing an animal into a workplace where it can interact with clients, vendors, and employees can be daunting. Industry-specific challenges, such as bringing animals near food preparation or manufacturing equipment, must also be creatively addressed. Employee complaints about safety, allergies, favoritism, or odors may also arise and will certainly complicate matters. Also, can assistive animals be excluded from certain areas of the office, such as the breakroom, and are businesses required to provide a regular place for the animal at work when it’s not in use? Navigating these hairy questions can make one feel like a dog chasing its tail! Our California Workplace Solutions lawyers have handled these and other issues and are prepared to guide you through each of these complex accommodation requests.

Edited by Julie Yap

How Transparent is Your Supply Chain? California AG Issues Guidance

Posted in 2015 Cal-Peculiarities

(Illustration) Shipping AirplaneBy Dana Howells

After almost five years since passage, California’s Attorney General has finally produced guidance on The California Transparency in Supply Chains Act of 2010. With the Attorney General at last weighing in (the Resource Guide is a hefty 50 pages) on this somewhat arcane legislation, covered companies may want to revisit posted disclosure statements in light of the new guidance.

Is my company covered? The law requires certain retailers and manufacturers doing business in the Golden State to disclose their efforts (or the lack thereof) towards eliminating human trafficking and slavery at every stage of production from acquiring raw materials to assembling finished goods. Your company may be covered if:

  • It identifies as a “manufacturer” or “retail seller” in its principal activity codes on California tax filings; and
  • Its worldwide gross receipts exceed $100 million, no matter where the company is domiciled; and
  • It is “doing business in California,” as defined in the California Revenue and Taxation Code (a complicated multi-part definition that includes paying just over a threshold of $50,000 for compensation in California or owning property worth just over $50,000 in California).

Every year, the California Franchise Tax Board furnishes the California Attorney General with a list of companies FTB believes are covered.

What must covered companies disclose? Covered businesses must disclose—conspicuously on their websites and within 30 days of a request—their efforts (or lack thereof) in five areas: Continue Reading

Thanks to you, we’re Chambers USA’s Labor & Employment Team of the Year!

Posted in 2015 Cal-Peculiarities

Winners Logo 2We are thrilled to announce that thanks to the feedback of clients and friends like our loyal blog readers, Seyfarth’s Labor & Employment group has just been recognized for excellence with one of the most prestigious awards in the legal profession. Earlier this week, the team was named Labor & Employment Team of the Year at the 10th annual Chambers USA Awards for Excellence ceremony in New York. The Chambers Awards honor the achievements of leading law firms and lawyers across the country for pre-eminence in key practice areas and notable achievements during the past 12 months, including outstanding work, impressive strategic growth, and excellence in client service. Chambers described Seyfarth as “the market-leading labor & employment practice in the country with an expertise and track-record of successful, cutting-edge defenses to employment discrimination class actions, bet-the-company EEOC lawsuits, and complex, high-stakes  wage & hour litigation.”

What means the most to us are the quotes from our clients, which included: “Aside from being legal experts in their fields, the firm’s attorneys are incredibly responsive and provide pragmatic, value-add legal advice,” and “I’ve had several occasions when they’ve given advice contrary to that of other firms – in every instance the lawyers at Seyfarth have been correct.”

At the end of the day, what motivates each and every L&E lawyer at Seyfarth is the goal of providing our clients with the level of service they deserve. It’s the driver of everything we do, and that’s why this award means so much to us.

THANK YOU to all our loyal blog readers for coming along on this ride with us. We appreciate it more than we can say.

Sticking up for Their Rights: Employers Taking the Offensive

Posted in 2015 Cal-Peculiarities

Defense and attack .fatBy David Kadue

The traditional posture of California employers apprehensive about “gotcha” wage and hour claims is to hunker down and wait for the next lawsuit. But a few brave souls have taken the offensive. We celebrate two examples here. We cannot guarantee the success of their efforts, but we applaud their courage.

Declaratory relief action against California Labor Commissioner

One annoying peculiarity of California employment law is the Bluford doctrine, announced in a 2013 Court of Appeal decision called Bluford v. Safeway Inc. The Bluford case announced that truck drivers—already paid handsomely by mileage rates and by hourly rates for specified tasks and situations—were entitled to additional, separate pay for each rest period, under a notion that “employees must be compensated for each hour worked at either [1] the legal minimum wage or [2] the contractual hourly rate.” The court found it immaterial that the truck drivers earned, on an hourly average, far more than the minimum wage. Although Bluford was a controversial decision, the California Supreme Court declined to grant the employer’s petition for review.

OK. Fair (or unfair) enough. Then came the California Labor Commissioner and the Division of Labor Standards Enforcement, to rub salt in the Bluford wound. The DLSE determined that employers who pay on a piece-rate basis not only must separately pay for rest periods, but also must pay for those periods at a rate higher than the minimum wage or a contractual wage. According to the DLSE, an employer must pay piece-rate workers for rest periods at a rate equal to their average hourly piece-earning rate (which would vary on a continuous basis and which could greatly exceed the minimum wage). The DLSE announced this determination in a November 2013 internal memorandum, developed without the benefit of a rule-making process. The resulting “underground regulation” robs piece-rate paying employers of the certainty of paying rest periods at a fixed, pre-determined hourly rate.

Certain agricultural employers, heavily reliant on piece-rate labor, got mad as heck and decided not to take it anymore. In April 2015, in a case entitled Ventura County Agricultural Association v. Su, employer associations sued the government. They brought a petition for writ of mandate and a complaint for declaratory and injunctive relief in Sacramento County Superior Court. They argue that the DLSE has issued an unlawful regulation and one that is contrary to Bluford. We wish them well.

Making a federal case out of compelling a plaintiff to arbitrate PAGA claims Continue Reading

Mendoza v. Nordstrom: Court to Define “Day of Rest”

Posted in 2015 Cal-Peculiarities, Case Update

(Illustration) Shakespeare TypingBy Candace Bertoldi

“The rest is silence.” So spake Hamlet, as he expired on stage. Lawyers love wordplay. Webster defined it as the “playful or clever use of words.” Google defines wordplay as “the witty exploitation of the meanings and ambiguities of words, especially in puns.” Shakespeare was the king of wordplay; his exuberant punning, much like Hamlet’s famous last words, has kept literary critics debating for centuries over their meaning.

Lawyers especially enjoy the wordplay game of statutory interpretation, which many regard as the highest form of intellectual fodder. No one can deny that wage and hour litigation often arises out of the exploration (or exploitation) of seemingly innocuous words in California’s Labor Code. Perhaps the most litigated word in recent years was “provide”—until the California Supreme Court issued, in Brinker v. Superior Court, the final word on an employer’s duty to “provide” meal periods.

Currently in the hot seat are lesser-known words, contained in the Labor Code’s “day of rest” provisions:

  • Section 551 provides that “every person employed in any occupation of labor is entitled to one day’s rest therefrom in seven.”
  • Section 556 exempts employers from the duty to provide a day of rest “when the total hours of employment do not exceed 30 hours in any week or six hours in any one day thereof.”
  • Section 552 prohibits employers from “causing their employees to work more than six days in seven.”

Adding further to the confusion, the IWC Wage Orders acknowledge that an employee will sometimes work more than six consecutive days. They state that Sections 551 and 552 shall not be construed to prevent an accumulation of days of rest when “the nature of the employment reasonably requires the employee to work seven (7) or more consecutive days; provided, however, that in each calendar month, the employee shall receive the equivalent of one (1) day’s rest in seven (7).”

Employers have grappled with what it means to “cause” an employee to work six days in seven, what it means to provide “one day’s rest in seven,” and when the day of rest requirement is excused. Wage and hour litigation has exploited the ambiguity in these statutes. But the California Supreme Court now has an opportunity to provide some clarity.

Continue Reading

SF Formula Retail Labor Protections Update: OLSE Holds Meeting to Give Overview of Ordinances

Posted in 2015 Cal-Peculiarities, San Francisco Ordinances

(Photo) SF City HallBy Kristen Verrastro

Yesterday, we attended a meeting at San Francisco City Hall where the Office of Labor Standards Enforcement (OLSE) gave an overview of the San Francisco Retail Labor Protections ordinances.

As our loyal readers know, we have been writing about the comments and activities surrounding the San Francisco ordinances known as the “Retail Workers’ Bill of Rights” for a few months, with our most recent blog post here and our Management Alert here.

In March 2015, Supervisors Mark Farrell and Eric Mar proposed two amendments to the ordinances.  Those proposed amendments would: (1) redefine “Employer” under the ordinances to mean any person or entity that owns or operates a Formula Retail Establishment with 40 or more (rather than 20 or more) Employees in San Francisco; and (2) allow CBAs to include a clear and unambiguous provision where some or all Formula Retail Labor Protections are expressly waived.  We anticipate the Board of Supervisors, or a Sub-Committee of the Board, will address these proposed amendments at a meeting in May.

At yesterday’s meeting, the OLSE presented a slide deck reviewing the ordinances, and answered questions from attendees. The OLSE also released a fact sheet regarding the ordinances (available here) and, in the future, potentially may roll out other guidance around the ordinances’ implementation.

In the meantime, the OLSE will be conducting a webinar tomorrow, Wednesday, April 29th, at which the OLSE is anticipated to again take questions under submission. For more information and a link to sign up for the webinar, click here.

Do note that the webinar has limited reservation space. If you are unable to attend or have questions about which to inquire, contact your Seyfarth attorney.

Stay tuned for more information from the OLSE as it is released. We also will be posting information regarding the Formula Retail Labor Protections ordinances up to the July 3, 2015 operative date and thereafter as it becomes available.