Seyfarth Synopsis: New Year’s resolutions typically address health and well-being. Many among us have resolved this year to get off the couch, to sweat a bit more often to the “oldies,” to meditate and be mindful, and to eat less cake and fewer tacos. And so one might think that courts would endorse the EEOC’s approval of employer-sponsored wellness programs, as a great way to encourage employees to follow through on their health goals. But beware! A recent federal court decision in D.C. has cited two statutes—the ADA and GINA—to roll back the EEOC regulation approving employer wellness programs. This decision, though prospective only, may significantly affect the structure of such programs, including those in California.

The Legal Landscape

GINA—the Genetic Information Nondiscrimination Act of 2008—is a federal law that protects individuals from genetic discrimination in health insurance and employment. GINA prohibits employers from using genetic information in hiring, firing, promotion, and pay decisions, or in determining privileges or terms of employment, including health insurance, although employers may collect genetic information as part of a wellness program, so long as the employee’s provision of the information is “voluntary.”

ADA—the Americans with Disabilities Act—prohibits many medical inquiries and generally permits employers to collect medical data only in connection with a “voluntary” employee health program.

California’s GINA equivalent—CalGINA—passed in 2011. CalGINA added “genetic information” to the list of protected classes found in California laws, including public accommodations statutes, the California Fair Employment and Housing Act (“FEHA”), and the Health and Safety Code. CalGINA also empowers plaintiffs to recover unlimited monetary damages, without facing the damages caps existing under federal law.

The EEOC, administering both GINA and the ADA, has issued regulations allowing employers to provide employees with financial incentives—up to 30%—to participate in wellness programs and to disclose genetic information in order to participate. These incentives effectively penalize employees who fail to participate, as they would pay more for health coverage. Many California employers—equally subject to the ADA, GINA, and the broader CalGINA—rely on the EEOC regulations to structure incentives in their workplace wellness programs. In light of CalGINA’s unlimited damages provision, any changes to the permissible structuring of wellness programs creates peculiar exposure for California employers.

The Challenge to the ADA and GINA Regulations

In October 2016, AARP (once called the American Association of Retired Persons) challenged the EEOC regulations, arguing that wellness programs are not really “voluntary” if, as the EEOC would allow, employers can charge employees up to 30% more if they refuse to disclose the medical and genetic information required by a wellness program. The EEOC defended its regulations as a reasonable effort to harmonize ADA, GINA, and HIPAA regulations to promote overall health through participation in employer wellness programs.

The Decision

In its ruling in AARP v. EEOC, a federal district court in the District of Columbia found that the EEOC rules were unlawful, on the ground that the EEOC had failed to provide a reasoned explanation for its decision to adopt the 30% incentive levels. The EEOC, in particular, had failed to show how a 30% differential in employee cost would be consistent with the employee’s participation being “voluntary” as opposed to coerced. On December 20, 2017, the court vacated the EEOC regulations and remanded them to the EEOC for reconsideration.

To avoid unnecessary disruption to employers and employees, the court left the regulations in place till January 1, 2019. While this distant date may seem to leave plenty of time to review and revise wellness programs, employers would do well not to procrastinate.

This resolution is particularly significant for California employers who risk unlimited exposure if they do not restructure their wellness programs in advance of January 2019.

Legislative Changes Looming

Employers should keep an ear to the ground for legislation that may further adjust wellness programs. In March 2017, House Representative Virginia Fox of North Carolina introduced H.R. 1313, the Preserving Employee Wellness Programs Act. The new bill has yet to come before the Senate. The bill, if passed into law, would allow employers to impose penalties of up to 30% of the total cost of the employee’s health insurance on employees who do not provide genetic information to participate in an employer-sponsored wellness program. The bill would thereby weaken the role of the EEOC’s oversight over genetic discrimination in wellness programs.

Workplace Solutions

California employers should know that the decision rolling back the EEOC regulations can threaten the viability of their wellness programs. Employers should now assess the extent to which their wellness programs provide incentives for divulging medical information, and decide whether those incentives, in light of the evolving case law, are defensible as being truly “voluntary.” Given the litigious nature of the Golden State, animated by the incentive of unlimited damages, California employers should be especially wary of programs that use financial incentives or penalties to encourage wellness program participation. Cautious employers should start the new year with a fresh look at the incentives built into their wellness programs and take steps to revise them as necessary.

Happy New Year!

Seyfarth Synopsis: Yes, it’s true: California employees can be entitled to pay for time they haven’t worked. Here, we highlight two common instances: split shifts and reporting time.

Your head—already spinning if you’ve wrapped it around California’s quirky wage and hour laws—may explode when you consider the notion of having to pay for time not worked. The duties to pay split-shift and reporting-time premiums are not new, but don’t worry: you’re not alone if you haven’t heard of them. Reading this piece will deepen your appreciation of just how peculiar California can be!

Split Shift Pay

What is it? Split-shift pay is governed by the Wage Orders (generally Section 4(C)). A split shift occurs when (1) a work schedule includes a block of unpaid time that is longer than 60 minutes (that is not a meal period) in a workday, (2) the block of time interrupts two work periods, and (3) the total daily wage does not exceed the minimum wage for all hours worked, plus one additional hour. The idea behind requiring split-shift pay is that the employee is not really free of duty between shifts because of the looming shift later in the day.

When a split shift occurs, employers must pay a premium of one hour of pay (unless the break qualifies as a “bona fide” rest or meal period).

What’s an example? For an eight-hour workday, the employer schedules a first shift from 9:00 a.m. to 1:00 p.m., and a second shift from 3:00 p.m. to 7:00 p.m.

How is the premium calculated? The split-shift premium generally would be an hour of pay at the minimum wage.

But it can get tricky. If the hourly wage exceeds the minimum wage, a split-shift premium may not be due. To see if one is due, you multiply the difference in rate (between the hourly wage and the minimum wage) by the hours worked that day. If the product of those numbers exceeds the split-shift premium (one hour at minimum wage), then the split shift premium is offset and not owed.

Suppose that two employees of a large employer both work the split shift described in our example. One employee makes the 2018 California minimum wage: $11.00. The other employee’s wage is $13.00. Here are the calculations:

Employee 1—earns $11.00/hr Employee 2—earns $13.00/hr

(1) $11.00 * 8 = $88.00 (daily wage)

(2) Add $11.00 premium

(3) $88.00 + $11.00 = $99.00

Split shift premium owed: $11.00

Total due for that workday =  $99.00 [($11 * 8 hours) + $11.00 premium]

 

(1) $13.00 * 8 = $104.00 (daily wage)

(2) $13.00 – $11.00 = $2.00 (difference between hourly and minimum wage)

(3) $2.00 * 8 = $16.00

Split shift premium owed: None (because $16.00 > split-shift premium of $11.00, the premium is offset and thus not owed)

Total due for that workday = $104.00

Nuance: While split-shift payments are considered wages, they need not be included in the regular rate when calculating overtime pay.

A strange split-shift issue can arise if an employee’s work crosses the defined workday. Consider a night-shift employee subject to a typical workday—starting at midnight—who works at minimum wage from 12:01 a.m. to 4:00 a.m. and then again from 10:00 p.m. to 4:00 a.m. That employee would be entitled to a split-shift premium, because of the long block of time separating work shifts within the same workday. The result would differ, however, had the workday been defined to start at 9:00 p.m. In that case, the employee would not experience a block of time separating work shifts during the same workday. An employer can redefine the workday for a group of employees so long as the workday definition is not a temporary means to avoid overtime.

Reporting Time Pay

What is it? Reporting-time pay is governed by the Wage Orders (Section 5). When an employee reports to work at the regularly scheduled time, but then gets sent home (usually for lack of work), the employer must pay for at least one-half the scheduled hours, at the regular rate. In no case, however, is the employee entitled to less than two hours of pay or to more than four. Here, the idea is that the employee who honored the employer’s schedule, expecting to work, should be compensated for the lack of work.

What are some examples?

  • Employee 1 is scheduled for an eight-hour shift, but then gets sent home after working just one hour. The employer must pay four hours at the regular rate—one for the hour worked and three more for reporting time—because four hours is one-half of the scheduled eight hours of work. Note that only the one hour actually worked, however, would count as hours worked for purposes of determining eligibility for weekly overtime pay.
  • Employee 2 is scheduled to report to work a second time in a workday, but then gets furnished less than two hours of work. The employer still must pay for two hours at the regular rate.

The DLSE has identified certain exceptions to reporting-pay rules, applying when

  • operations cannot begin or continue because of threats to employees or property, or when civil authorities recommend that work not begin or continue;
  • public utilities fail to supply electricity, water, or gas, or there is a failure in the public utilities, or sewer system; or
  • the interruption of work results from a cause beyond the employer’s control (such as an earthquake).

Nuance: The reporting-time pay provisions do not apply to employees on paid standby status, or to employees who have a regularly scheduled shift of less than two hours, such as a relief cashier who works a one-hour shift in the middle of the day.

Workplace Solutions

Employers should carefully review their practices to ensure that they adequately pay employees on split shifts. Employers should also be sure to incorporate reporting-time pay requirements into their policies. Doing this can avoid an obligation to pay back wages and penalties. If you have any questions about work schedules or compensation for your employees, please do not hesitate to reach out to one of our wage and hour experts at Seyfarth Shaw.

Dear Readers:

We are thrilled to report that this week marks the 5th Anniversary of the Cal Peculiarities blog! Thank you for your continued support and interest; we couldn’t do it without you. And a hat tip to our enthusiastic team of writers, editors, assistants and the occasional guest author, all of whom have helped keep the blog overflowing with new ideas and on track for weekly posts.

Looking back, we have covered a lot of CA employment law territory, recently touching on topics as various as sexual harassment, pay equity, scheduling ordinances, and the news breaking Legislative Update. Our blog continues to be a resource for in-house attorneys, HR professionals, business owners, and managers who face real issues on a daily basis.

We recently asked you to share what you would like to read about in the coming year.  Just below, we offer one especially clever answer from a very funny reader!

Here’s my wish list for CalPecs Santa. Please keep in mind that I’ve been really, really good this year. Really.

  1. A big bucket for all of the definitions, FAQs, and other explanations that will surely be coming from the state regarding how to implement the pay-history ban
  2. A referee’s whistle to help officiate the battle between the state and the feds regarding California’s “sanctuary state” status. (A mop might help, too. And another bucket.)
  3. A crystal ball to watch for rulings that would require employers to tolerate medical marijuana use.
  4. A new bulletin board for the extra notices and training schedules needed in 2018. Fortunately, it doesn’t have to be extra-large since median pay levels won’t have to be posted. Yet.
  5. A pony (of course I have to ask) because then I think I could still text and, uh, ride.

Keep an eye peeled in 2018 for posts on these subjects (even the pony!). And any others that you would like us to cover.

Please send along your requests to cregan@seyfarth.com, cmesa@seyfarth.com, cturner@seyfarth.com, mwahlander@seyfarth.com or your favorite Seyfarth attorney.

We look forward to the coming year’s challenges, and hope 2018 is a peaceful, productive and rewarding year for each of you.

Seyfarth Synopsis: The natural inclination is to ignore attempts to dredge up claims of harassment that happened long ago. But no harassment claim is too old to investigate. Having strong anti-harassment policies and investigation procedures, along with a good work culture, can help employers avoid getting caught in the cross-fire of the “me-too” harassment dialogue.

The #MeToo movement has enveloped America. Women in every station of life—celebrities and ordinary folk alike—have broken their silence to report sexual misconduct. Often the allegations address conduct that occurred years ago, beyond any legal limitations period.

So what is an employer to do? Suppose an employee or former employee comes forward to say, “I was harassed 10 years ago by my supervisor and I want you to investigate!” What do you do? Do you have a duty to investigate? If so, how do you do so? And can you be liable for claims that invoke events occurring years ago?

The Legal Landscape

Someone suing for harassment unlawful under California law must show unwelcome verbal or physical conduct that was severe or pervasive enough to alter working conditions and create an abusive working environment for a reasonable person. Harassment plaintiffs suing under the California FEHA must first exhaust administrative remedies. That involves filing an administrative complaint within one year of the unlawful conduct and obtaining a right-to-sue letter. Once the letter issues, the plaintiff has one year to file a civil lawsuit.

There are three exceptions to the one-year rule: (1) someone who learns of the unlawful practice after the year may get a 90-day extension; (2) someone subjected to discriminatory violence or threat of violence (see Civil Code section 51.7) may get an extension of up to three years; and (3) someone victimized by unlawful practice while still a child can get an extension of up to one year after turning 18 years old.

How might the first exception come up, you ask? Well, say two employees make sexually charged statements via email about the complainant. She finds out about the emails a year or so later. Perturbed and believing that the emails have changed the terms and conditions of employment, she resigns and files an administrative complaint with the DFEH. While her claim would fall outside of the statutory period because the emails occurred than a year ago, her claim arguably might be subject to the 90-day exception because she learned of the “harassing conduct” when she learned of the emails.

Stale events can also be actionable under the “continuing violation” doctrine, if one part of the violation occurred within the limitations period. A violation can be continuing if the unlawful incidents that occurred before and within the limitations period were (1) sufficiently similar in kind, (2) occurred with reasonable frequency, and (3) did not obtain a degree of permanence. In other words, claims based on stale events can be pursued if they address timely events of a similar nature. Reasonable frequency refers to similar conduct that was not isolated, and permanency refers to whether the plaintiff was on notice that further efforts to end the unlawful conduct would be in vain.

Your Harassment Policy And The Legal and Non-Legal Reasons To Enforce It

A company’s interest in preventing harassment is moral and organizational as well as legal. Preventing harassment and fostering civility and respect in the workplace are the right things to do. And employers with strong anti-harassment policies and periodic anti-harassment training can create a culture of compliance, reporting, and remediation that will encourage employees to seek redress with the company instead of through social media or litigation.

Employer policies generally prohibit discrimination and harassment in the workplace and require, or at encourage, employees to report promptly the harassment they experience or witness, so that the incidents can be properly investigated. Policies usually do not impose deadlines on when an employee must report harassment or discrimination.

What Do You Do With A Complaint?

(1) Always try to investigate

So if a stale claim lands on your desk, what do you do? The short answer is always investigate—no claim is too old. Policies usually both encourage reports and do not impose time limits on reports, so live by your policy. Doing so enforces the policy’s integrity. Employees are more likely to follow policies if their employer holds itself to them.

A thorough investigation will lead to an employer’s best decision and will in any event support the reasonableness of its decision as part of any legal defense. And failing to conduct an adequate investigation, while not itself actionable, can undermine the employer’s legal defense. Failing to investigate a complaint—even a stale complaint—can also create exposure if the accused engages in further harassment against either the complainant or someone else the accused interacts with.

(2) Prompt and thorough investigations are key

Stale claims bring special challenges. Witnesses may no longer work with the company, and documentary evidence the complainant may once have had may no longer exist.

Nevertheless, like any investigation, the investigation of a stale complaint should be reasonably prompt and thorough. The complainant should be interviewed and the allegations impartially investigated. If the accused is no longer an employee, the employer should assure the complainant that the alleged conduct is not tolerated and should point to its policies for support.

After every investigation, an employer should follow up with the complainant to report the findings of the investigation and any remediation taken. The employer should ensure that any misconduct has ceased and that the complainant feels safe. The employer should also encourage the complainant to report any future incident of harassment and affirm that the complainant will suffer no retaliation for coming forward. And the employer should then revisit the situation with the complainant, after some reasonable interval, to ensure that there is no further complaint.

If you are interested in a further discussion of any step in the above process, from drafting policies to conducting trainings or investigations, your Seyfarth attorney is ready to advise and assist.

Seyfarth Synopsis: The ordinary headaches of responding to unemployment claims with the EDD do not have to bog down employers in 2018. Here, we provide recommendations for managers to consider before the ball drops in Times Square this New Year.

’Tis the season to be jolly, sing holiday songs with family by the fire, and aspire to reach new heights in the coming year. Employers, consider making it one of your New Year’s resolutions to reevaluate your approach to unemployment benefits claims. Certainly, more time and fewer headaches are things we can hope for in 2018.

Many of us are well-acquainted with the frustrations of defending unemployment claims made by employees recently fired for misconduct. Suppose an employee with a history of warnings for rude comments makes one final zinger on a conference call, forcing your hand to fire him. The resulting distraction and lost morale are bad enough, but next he hales your business into a claims process with the California Employment Development Department (EDD) for unemployment benefits. You spend the next few months answering questions from EDD agents and submitting detailed proof of the employee’s bad behavior. A manager and other witnesses take the day off to testify at the hearing. After all this, the employee is awarded benefits anyway and, worse, he now sues you for wrongful termination. This nightmare before Christmas is enough to make any employer a scrooge!

Our holiday gift to employers is a set of best practices to help you navigate the EDD’s blizzardy claims process, and to minimize any potential problems should a Grinch-y employee sue you later. We hope our recommendations result in many silent nights in the year to come.

Determine If The Employee Was Bad Enough For the EDD’s Naughty List

Employers do not need a shepherd or a shooting star to know that employment in California is at will. So long as the decision is not discriminatory or unlawful retaliation, managers may terminate employment because of misconduct, poor performance, for violations of company policy (even on first-time infractions), or, ultimately, for no reason at all.

But the EDD will deny a claim for unemployment benefits only if it finds a much narrower type of serious misconduct. The broken rule or policy at issue must be important to the business. If a misdeed did not harm the company, then the discharged employee will likely win an award of benefits. Also, a single, isolated mistake usually will not preclude such an award. Poor job performance—unless highly egregious and persisting after multiple warnings and a clear threat of termination—will probably not suffice either. What the employer needs to prove are acts of serious misconduct, such as embezzlement, workplace violence, or harassment, and EDD will demand real proof, such as documents and convincing testimony.

Remember, the EDD is in the business of awarding benefits, so expect that in most cases that is just what the EDD will do. That is, most terminations will not disqualify a former employee from an award of unemployment benefits. Employers should carefully evaluate the reason for the discharge, and the supporting evidence, before trudging down the icy path of litigating an unemployment claim. And if you do decide to challenge a claim, make sure to bring more than a Red Ryder BB gun to the hearing; the EDD will expect hard evidence and credible witnesses before it denies benefits.

Just As Santa Does With His List, Check Your Facts As Least Twice

Most disputed unemployment claims are contentious. No holiday carol extols the joy of getting fired, and that is for good reason. Opposing a former employee’s benefit claim is often like throwing gasoline on a fire, and lawsuits for wrongful termination are usually not too far away.

The EDD’s claims process is complex, so it is not uncommon for claimants to lawyer-up. None of the parties’ communications with the EDD are privileged, however; interviews, position statements, and the like are all discoverable, as are the documents submitted and the testimony given at the hearing. In a later lawsuit, a plaintiff’s lawyer can subpoena the EDD’s entire file, which frequently includes an audio recording of the hearing, and search for inconsistencies or admissions to use against an unsuspecting employer in litigation. Because companies often give EDD claims a low priority, statements made to the EDD often are not scrutinized by counsel or senior staff. Employers should carefully vet the facts of a termination before they are presented to the EDD. Otherwise, bad evidence, like the ghost of Jacob Marley, may just come back to haunt you.

Consult Your Trusted Magi On High Risk Terminations

In some cases, the likelihood of litigation over a termination is clear before or soon after the termination decision. A high-risk termination may be preceded by the threat of a lawsuit by an employee’s newly hired lawyer during the company’s investigation for misconduct. It may not be wise, depending on the circumstances and the employer’s ultimate goal, to oppose the employee’s unemployment claim. Or, conversely, it may be strategically sound to educate the employee’s attorney on the Gremlins hiding in the case from the outset.

Workplace Solutions: When litigation is on the horizon, we recommend that employers consult with their trusted counsel on these strategic decisions as early as possible. Our attorneys are ready to help guide employers through these dynamics, whether it be this holiday season or in the year to come.

 

Seyfarth Synopsis: In the first case of its kind under the California Fair Pay Act, a court dismissed a pay equity class claim against Google, holding that alleging wage discrimination for “all women” does not plead enough information to sustain a complaint.

You have learned, in following our updates on California’s Fair Pay Act (2015 passage, 2016 update 1 to include more than gender, and update 2, DLSE FAQ updates, and the AB1209 Gender Pay Gap Transparency Act update), that the FPA’s requirements are hardly transparent. Well, last week, in the first ruling of its kind, a California court has provided a little clarity.

As reported here by our Pay Equity Group, a court has dismissed a sweeping class action complaint against Google, seeking to represent “all women employed by Google in California” on claims of gender-based wage discrimination. The court held that the plaintiffs had not adequately alleged an ascertainable class, meaning there was no way to tell who had claims and who didn’t. Because there was no common policy or practice affecting all women at Google, the court found that the plaintiff could not show commonality or typicality with the group she seeks to represent.

Workplace Solutions: While we have a long way to go getting clarity on what the FPA requires, this court decision was a welcome first start. Please reach out to our cutting-edge Pay Equity Group with your questions as you continue to navigate these thorny issues.

Seyfarth synopsis: Companies contemplating a mass layoff must comply with the federal Worker Adjustment and Retraining Notification Act. In California, alas, companies must also consider the even more stringent requirements of California’s own WARN act. That is the harsh lesson recently imparted by the California Court of Appeal in Boilermakers v. NASSCO Holdings Inc.  

As just reported in our management alert, a California shipyard sustained liability when it failed to notify 90 employees of a four- to five-week furlough occasioned by a lull in their production work. Under the federal WARN act, no notice was required, because fed-WARN requires notice only for a “plant closing” or a “mass layoff,” and the latter refers only to an “employment loss,” which is either a termination, a layoff exceeding six months, or a 50% reduction in work hours during six consecutive months.

Because the short furlough here did not trigger any of those conditions, fed-WARN did not apply.

But California is different. As NASSCO Holdings explains, California, as is its wont, has decided that federal worker protections are inadequate, and that California knows better: “the entire thrust of the legislative effort in enacting the California WARN Act was to provide greater protection to California workers than was afforded under the federal law.” Cal-WARN, like fed-WARN, applies to “mass layoffs,” but defines the term more broadly than fed-WARN does. Under Cal-WARN, a “mass layoff” includes a layoff of at least 50 employees during a 30-day period, with a “layoff” being any “separation” from a position for lack of funds or work, and with there being no requirement of a minimum duration (such as the six-month minimum duration stated in fed-WARN). So Cal-WARN can cover a short-term layoff that fed-WARN would not cover.

The employer in NASSCO Holdings pointed to absurdities resulting from a broad reading of Cal-WARN, such as Cal-WARN applying to long holiday weekends and totally unforeseen events. NASSCO Holdings responds that, under Cal-WARN, “California employers, not California employees, should bear the risk of surprise resulting from an unexpected layoff,” and that employers who do not like that result can always take their concerns to the California Legislature. (Good luck with that.)

NASSCO Holdings also sounds a warning that Cal-WARN’s extension to short-term layoffs is not its only Cal-peculiarity. Cal-WARN exceeds the reach of fed-WARN in other respects as well. For example, Cal-WARN, unlike fed-WARN,

  • provides employers no exemption for layoffs resulting from “unforeseeable events,”
  • permits an award of attorney fees only for prevailing plaintiffs (not prevailing defendants),
  • includes part-time employees as well as full-time employees in calculating whether enough employees have been affected to constitute a mass layoff,
  • requires direct notice to employees (not just to employee representatives), and
  • requires notice to more local officials and agencies.

This Cal-WARN saga is thus an apt exemplar of the more general peril that unsuspecting national employers—duly following national labor law—can encounter when they do business in the Golden State. Be WARNed: California is peculiar.

California Workplace Solution:  Laying off at least 50 employees can trigger a Cal-WARN concern even if the layoff, or furlough, will be short-term. So you may have to give employees at least 60 days’ notice of that event. Some administrative authority suggests that very short furloughs—lasting two weeks, or some shorter period—do not trigger Labor Code termination obligations, which arguably could mean that they escape the grasp of Cal-WARN. That authority is consistent with Cal-WARN language that creates liability only to employees who have “lost … employment,” and with the fact that a very short-term furlough is not a meaningful loss of employment. But the facts of each particular situation will matter. Our specialists at Seyfarth are here to WARN you of the risks and advise you on how best to handle your own situation.

Edited by David Kadue.

Seyfarth Synopsis: In June 2017, the San Francisco Board of Supervisors passed an ordinance requiring employers to provide a private “lactation location” where new mothers can pump their milk as well as a “lactation break” during the work day, in addition to other amenities. The ordinance is effective January 1, 2018 and is more expansive than current state and federal law requiring employers to make reasonable efforts to provide lactation breaks throughout the workday. In the wake of its passage and the approaching effective date, the City’s Office of Labor Standards Enforcement and Department of Public Health are issuing administrative guidance for employers.

San Francisco’s Lactation Ordinance Is More Comprehensive Than State and Federal Law

As we wrote a few months ago, San Francisco’s Lactation in the Workplace Ordinance goes into effect January 1, 2018. Virtually all San Francisco employers are covered; there is no minimum employee threshold that may exempt smaller employers from coverage. This latest ordinance is another example of the City’s ongoing effort to enact employment regulations with the goal of either addressing a perceived need in the absence of state or federal law (such as the City’s 2007 paid sick leave ordinance that went into effect over eight years before the California version) or, in the case of the lactation ordinance, exceed the requirements of existing law.

The ordinance calls for a private “lactation location” that must meet several requirements. The lactation location must not be a bathroom and must be (1) shielded from view, (2) free from intrusion by other employees or the public, (3) available as needed, (4) “in close proximity to employees’ work area,” and (5) safe, clean, and free of toxic hazardous materials. The employer also is required to provide the employee with a place to sit, a table/desk or surface to place a breast pump and personal items, access to electricity, a sink with running water, and a refrigerator. The ordinance also states that lactation break time “shall, if possible” run concurrently with any break time already provided to the employee, such as unpaid rest periods.

The ordinance’s requirements are certainly rooted in an important public policy addressing the health of new mothers and babies.  But potential problems arise from the ordinance’s use of vague phrases such as “close proximity to employees’ work area.” How close does “close proximity” mean: the same room? Down the hall? In the same building? This means the ordinance is in dire need of clarification to help both employers and employees comply with its novel terms. Enter the San Francisco Office of Labor Standards Enforcement and Department of Public Health to provide guidance.

Administrative Guidance Sheds Light On Compliance Expectations

Perhaps recognizing its own shortcomings, the ordinance requires the San Francisco Department of Public Health to provide employers with guidance for best practices for accommodation, as well as a model policy and model lactation accommodation request form.  To that end, the Department recently posted samples of a Lactation Accommodation Policy and Request for Lactation Accommodation that employers may use in its own operations or as guidance to develop its own policies.

The Department also posted a summary of legal requirements and best practices.  The summary is based on the previous public memo issued by Supervisor Katy Tang, who is the supervisor responsible for drafting and proposing the ordinance.  Interestingly, the “best practices” include “optional but highly recommended amenities” such as a hospital-grade breast pump, calendar or room reservation system, a full length mirror, Wi-Fi, “resource station” for educational literature, and lockers to place personal belongings. They also suggest temporary reduced hours, job sharing, flex time, telecommuting, and allowing the caregiver to bring the child to workplace for feedings. The ordinance currently does not require these amenities, but these best practices may foretell an expectation of how the City may interpret (or amend) the ordinance down the road.

City regulators may also issue interpreting regulations, but that would require adherence to a lengthy rulemaking process that would include the opportunity for stakeholders to provide public comment. We have been in frequent contact with the helpful analysts at the OLSE regarding additional guidance, and have been told that they are still working on the guidance in anticipation of the January 1, 2018 effective date.  Of course, we will continue to update readers on any future developments.

Workplace Solutions

The ordinance requires San Francisco employers to issue its lactation accommodation policy to employees, so employers should review and, if necessary, update their policies to comply.  While the City has posted a sample policy and request form, sample policies are not always right for every employer.  As always, employers still should ensure that any policy they implement and enforce is right for their own operations.

If you would like assistance with a review of your policies, please feel free to contact one of Seyfarth Shaw’s attorneys.

We’re sure the rush of Black Friday, Cyber Monday, and the endless holiday events over the next few weeks have got you thinking: what’s on my wish list? If you could ask CalPecs Santa for anything, what would it be?

Your CalPecs editors are ready to ring in the New Year with an assortment of articles as mesmerizing as the ball drop in Times Square, but we’d like to know what YOU would like to see. If you have a hot topic of interest you’ve been mulling over with your cider, or a nagging issue popping up more than marshmallows in a cup of hot cocoa, please send it our way! We’ll wrap your thoughts in a bow and address them in our posts for 2018.

Please help us bring joy to the world, and contact us here with your holiday wish!