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

(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.
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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:
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(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.

(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:
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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
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(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.


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(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