Good morning, Happy Memorial Day, and welcome to my holiday and therefore Tuesday edition of Monday Morning Briefings. I have added a few of you to this mail list recently, so if you don’t know why you are getting this, WELCOME! I try to send this around to my special clients and friends once a week, and sometimes I miss a week (like last week, when I moved, or if there isn’t too much going on news wise). Two weeks ago I acknowledged that we had just endured yet another weekend of tragic gun violence, and here we are again. I had not intended to address that issue here, but then, how can we not? I’ll let that bit sit with you for what it’s worth.
THAT COVID THING
Before we get into some real employment law news and other changes going on in the world, let’s touch on this pandemic that just doesn’t want to seem to quit. Two weeks ago, I told you all about the most recent Cal/OSHA Temporary Emergency Temporary Standards that had been issued, and I am once again attaching the Isolation and Quarantine Guidelines. And then a whole bunch of you called me over the last two weeks and acted like you had no recollection about this whatsoever. Which makes me think that (a) you didn’t read my Briefing, or (b) California issued something that was confusing. Since it is hard for me to believe that you are not reading my Briefing (!!), I suspect that the ETS and the new Guidelines, especially that bit about “shared air space,” might be the part that is throwing everyone. So I decided to touch on it again, with a slightly revamped definition from CDPH, since these COVID numbers do seem to be stubborn.
For the most part, what is going to happen is that if one of your employees calls in and says they have tested positive for COVID, you still have to do that “contact tracing.” But now, the contact tracing is no longer limited to people who had 15 minutes of contact within six feet, it is now: “someone sharing the same air-space with an infected person for 15 minutes within the last 24 hours.” But the good news is that those people no longer have to quarantine by staying home. California Department of Public Health simply says they should wear a mask for ten days (ten days from the exposure) and get a COVID test within 3 – 5 days.
The question everyone is having, of course, is “what is a shared indoor air-space?” Going onto the CDPH site, their definition of same indoor airspace is someone having 15 minutes of contact over 24 hours. But they now added a little parenthetical example. They use the example of “having three individual 5-minute exposures over 24 hours.” I thought that example was helpful. For example, I go into our office now once or twice a week. When I do, there are a smattering of people there, some in offices, some in hallways, some in the lunchroom or file rooms or other common areas. I may stop and chat with a particular attorney or staff person for a few minutes to say hello and talk about a case. But unless I am working with a particular person, I am probably not spending five minutes one-on one with any given person more than three times. Now, if I am having a client meeting or department meeting in a conference room, then I would be in a shared airspace for over 15 minutes.
I think that additional explanation on the CDPH website helped clarify this definition quite a bit. Hopefully, it does for you all, too. But feel free to call me with questions. I know you all will. And don’t forget – California Supplemental Sick Pay still applies through September if someone is missing work due to COVID related reasons.
CALIFORNIA SUPREME COURT ISSUES LONG AWAITED DECISION IN NARANJO V SPECTRUM SECURITY SERVICES – CONFIRMING APPLICABILITY OF PENALTIES IN MEAL AND REST BREAK CASES
In a surprise to no one, the California Supreme Court whacked employers again and confirmed that claims for meal and rest break violations also support derivative actions for waiting time penalties (Labor Code Section 203) and wage statement violations (Labor Code Section 226).
Ever since the California Supreme Court decided the case of Murphy v Kenneth Cole Productions back in 2006, when it declared that the one hour of extra break pay was considered a “wage” not a “penalty,” the California courts have struggled to determine exactly what that means. For example, in 2012, the same California Supreme Court in Kirby v Immoos Fire Protection said that while Murphy correctly called the one hour of pay a wage, “a claim under 226.7 is not an action for non-payment of wages within Section 218.5;” and ruled that meal and rest break pay does not support attorneys’ fees. The Naranjo Court danced around the decision in Kirby and refused to disturb it, for now, once again making the strange distinction between Labor Code Section 218.5 and the other Labor Code Sections, 203 and 226.
So for now, meal and rest break pay is still a wage and supports the derivative claims of waiting time claims under Section 203 and wage statement violations under Labor Code Section 226, but not a claim for attorneys’ fees. One more inconsistency – the California courts have said that Section 203, while technically a “penalty” itself, has a three year statute of limitations because it tracks the types of claims that could be owed (failure to pay vacation, wages, etc). A claim for Labor Code 226 penalties, for failing to provide compliant wage statements, is still only a one year statute of limitations.
By the way, there is still a case pending before the Supreme Court squarely on the issue of rest break attorneys’ fees, and that is the case of Betancourt v Bloomin’ Brands, which is our firm’s case. Since the Court chose not to overturn or even question Kirby, we have our fingers crossed.
But notwithstanding the shining light about attorneys’ fees, the Naranjo decision is viewed as a major win for the Plaintiff’s bar, who are still holding their collective breath about the outcome in Viking River Cruises due in the next 30 – 45 days.
TAKE YOUR SEATS AND BUCKLE UP – CONTINUED TURBULENCE PREDICTED AHEAD
I know I keep saying it, but this year just keeps getting curiousier and curiousier. Are we all just living in the Upside Down world? (the new season of Stranger Things IS out now, right?) A client finally told me that Mercury was in Retrograde, but I think that was over a week ago, and it feels like that could explain all of 2022.
I’ve been talking about the stress on humanity, employees acting out, the overall PTSD of the world (as if increasing gun violence wasn’t a sign of that), and our need to be patient with one another. But I am also seeing the pressure valve bursting in other ways, that is, an increase in the demand letters and lawsuits we are seeing. Some from existing clients, some from new sources. But in general, as tensions in the world flare, so, too, do people reach out to lawyers. That just means that you all need to do what you do best even more so. Stay on your compliance game. Make sure your handbooks are up to date and SIGNED. Get those managers trained. Work on inclusion! Show love to your employees where possible (hotlines, town halls, just be accessible!) If employees reach out to you, this is NOT the time to ignore emails, calls, meetings. If your employees do not hear from you, they WILL turn to lawyers or agencies. Have your door OPEN. And don’t be afraid to listen.
And if you need me, I’m here. I’m here to listen to YOU. That’s what I do.
Hold on, everyone. It is a bumpy ride. But we will get through this one – promise. Stay safe and healthy.
#StandWithUkraine