Good morning campers, Happy Mother’s Day to my fellow mothers of every kind, and welcome to my latest edition of Monday Morning Briefings. I did take a week off last week, which was much needed with the deluge in litigation related work. But the good news is we did hire a new associate for our team, whom I will introduce to you when he starts very shortly.
COVID MAYBE DESTINED TO STICK AROUND
When I hunt around for news about COVID and the changes to the law, I really have to look these days. It is obvious to me that except for the health experts, who keep harping that they have not downgraded this pandemic yet and we may even see a surge later this year, everyone else really wants to believe this thing is behind us. After all, we have an election at our doorsteps. Businesses are thriving, and their one complaint is that they still can’t hire enough workers. The last thing anyone wants is an excuse to allow more people to stay home by talking about mandatory masks or vaccines again. Los Angeles County did impose that mask mandate in public transportation settings when the federal one was enjoined, but with very little fanfare.
Also with little fanfare, Cal/OSHA finally did issue its long-awaited, revised Emergency Temporary Standards (ETS) on May 7, 2022, which will now remain in effect until the end of 2022. They come with a new handy set of FAQs, the link for which I will post for you here.
The new ETS do still require that employers keep in place those COVID Prevention Plans that we all helped you prepare and then update over the last two years, so continue to keep those in place. If you have no idea what I’m talking about when I mention COVID Prevention Plan, feel free to contact me, and we can assist you in putting one into place. But I will be honest; I don’t know how much anyone is looking for these CPP these days. And the ETS make clear that there is no longer a mask requirement, although they recommend, as do we, that masks should be made available for ANYONE who wants to wear one.
Now, I say all of the above with the following note of lawyerly (and even motherly) caution. First, as much as I believe many do want to emotionally put all things COVID into a drawer forever, practically and legally, that isn’t the case. These laws are still in place, and far more importantly, this health crisis has not completely vanished. COVID may not be the threat it was; more likely, we may just be learning to live with it as a society. But those health experts keep reminding us, it is still here. And indeed, we have a new sub-variant that is making a little run these days. In case you all haven’t noticed, our numbers in the US, California, and Los Angeles are very much on the rise again. I am once again getting regular calls from clients about employees getting sick with COVID.
Which brought up another reminder today – we still have the obligation to pay California Supplemental COVID Sick Pay (if you have 26 employees or more) until September 30, 2022. And even if you have yet to pay a penny, you must TRACK how much you have paid to your employees for this year, which may mean putting ZERO on their paychecks if they have been paid nothing thus far. Failure to adequately track California Supplemental COVID Pay, just like failure to track the amount of available sick pay on the wage statements for ALL California employees, is a Labor Code violation, subjecting employers to a per payroll penalty of up to $4000 per year per employee. In our PAGA cases, just the failure to track sick pay or COVID pay on the wage statements/paystubs could result in a $400,000 claim for a company of 100 employees. If you have a few more employees than that, well, you can all do the math.
Go check your wage statements. And don’t forget to offer COVID pay to eligible employees. (If you need more details, check our website for the Alert and my Briefings on this issue, or call me).
THOSE PESKY WAGE & HOUR SUITS JUST KEEP ON COMING
Maybe it’s a testament to how hard we all work together to do the right thing by your employees. I keep waiting for the next BIG wave of lawsuits to be filed against my clients – all those big, nasty sexual harassment lawsuits I really thought we would see as a result of the Act Biden signed, banning arbitration of harassment claims. At least so far, I haven’t seen them. They may still be coming, of course; that law is still very new. But what we just keep seeing more and more of what I call the “low hanging fruit” claims – demand letters, single employee lawsuits, PAGA and class action lawsuits for wage and hour violations. Of course, if you all have your arbitration agreements signed with your class action waivers as we have taught, then we can convert those class action lawsuits into individual arbitrations. Hopefully, depending on the United States Supreme Court’s decision in Viking River Cruises due out next month, we will be able to do the same thing with PAGA suits.
But even a single plaintiff lawsuit, for a long term employee who has worked the full four years can be expensive. Maybe it is an employee who has been misclassified, either as an independent contractor or an exempt employee. Or perhaps the regular rate wasn’t calculated properly and there is unpaid overtime and break pay spanning back four years. Or maybe there is a rounding time claim that can also impact overtime. Or there could be an off the clock claim – someone was interrupted, was kept from being able to leave the premises on a rest break or asked to wear a pager, or maybe someone had to don safety equipment before they clocked in. What about temperature pre-checks – are or were they done on the clock? Or god forbid someone asked employees to bring pens or crumbers or wine openers to work with them. And no one, ever, should have a meal break auto-deducted from their pay. Ever.
Those are just a smattering of the lawsuits or demand letters that have come in for some of my clients over the last few WEEKS. And even though I think I have touched on many if not all of these issues in these Briefings before, people still seem confused or surprised when these claims come in, like these are new issues. So I keep repeating them, even though none of these issues are new. Some go back to AB 60 in 2000. Many go back to the start of wage and hour law, in the 1940s.
We also have talked about training your managers on these issues. Last time, a few of you messaged me and asked if I knew any good manager training resources. We do manager training, and honestly, I think we do some of the best out there, because it’s customized for you. We can do it via zoom, very affordably, at your convenience, and you can even record it for later use. We can even do them in Spanish. As for rank and file training, I do know some very good resources, so message me for those offline.
But whether it involves training, sitting down with your own payroll team, or going over exempt categories and practices with us, just keep asking questions. It may even be time for a full blown wage and hour audit, which we can certainly help you do. It’s probably no more than a few hours in a meeting, zoom or phone call to start, but that helps spot a lot of issues you may not have known were there. It is definitely less expensive than dealing with even one of these demand letters, let alone a lawsuit.
That’s it for this week. It feels like the world feels even less stable lately, and I have ever more clients calling with stories of employees who are just not holding it together. Remember to try to give the people in your lives a little extra grace – especially yourselves. Take that time to find your breath, as my yoga instructors always remind. And stay safe.
#StandWithUkraine