Episode 157: The Latest Issues Employers Are Asking About on the CalChamber Labor Law Helpline

Welcome to the Workplace, a podcast by Cal Chamber. I'm Matthew Roberts, the Labor Law Helpline Manager and Employment Law Council with the California Chamber of Commerce. We return to you today with another edition of Helpline Potpourri. The wonderful thing about the Cal Chamber Helpline for our members and our listeners here on the podcast is that they get access to expert attorneys and employment law related matters in order to handle anything from the routine to the new to the outright bizarre. And for us here at the Chamber, we get to see what real issues are currently affecting small, medium and large California employers so that we can better serve and support California's employers. To explore what's been a fascinating few months on the helpline, we of course welcome back one of my Helpline advisors, Ellen Savage, to the show. Thank you for joining me today, Ellen.

You know I always look forward to chatting with you, Matt.

Oh, it's one of the treats of my job here at the Chamber. It's fantastic. Now, of course, Ellen, we can't start today's without discussion of the hottest of the hot topics, which to no one's surprise still remains COVID19's impact on the Workplace. The various omicron subvariants continue to spread here in California, which has resulted in a persistent workplace issue, really since the beginning of April. One of the biggest issues we've seen lately now is the revised definition of close contacts and really how that impacts what employers do to handle contact tracing and excluding employees from work. Ellen let's talk about the updated close contact definition and really what its effect is.

So Matt, it's really amazing how what seems to be a teeny tiny change to the wording of a definition can make such a huge difference. Cal OSHA updated its COVID 19 frequently asked questions recently to reflect changes that the California Department of Public Health made in their definition of close contact. So here's the change we're all now familiar and have been forever with the definition of close contact. It's been in place for so long, right? Matt, you can probably repeat with me in unison 6ft for a cumulative total of 15 minutes or more over a, what, 24 hour period during their high.

Risk infectious period, of course, right? Ellen.

But in June, the California Department of Public Health, ceph, decided to change things up a little bit. And now a close contact is someone, quote, sharing the same airspace for a cumulative total of 15 minutes or more over a 24 hour period during that darn infectious period. And the only definition really of an indoor airspace that CDPH gave us was a home A clinic, a waiting room, an airplane. So wait, what, what is sharing the same indoor airspace and how's it different from that six foot rule we all know and love? Like if I'm working on a Saturday in a big warehouse, Costco size, and one other coworker's working there that day and she's way on the side of the warehouse, we're sharing the same airspace, aren't we? It's a lot of air, but we're sharing it. So Calosh updated its FAQs, basically saying, hey, employers, you figure it out. Let's analyze it on a case by case basis. And we're going to consider two specific things. What was the employee's proximity to each other and how long were they together? So if my co worker was on the opposite side of the warehouse all day, she did her job, she went home. I'm probably not a close contact, but if on our lunch break we sat together in the break room, we ate our tuna sandwiches, talked about last night's episode of Ted Lasso, then we probably are close contacts. And so what does that mean? We shared the same airspace. So if she turns out to have Covid and then I get Covid, or even if I develop symptoms and I'm waiting for a test, I have to be excluded from the workplace and paid exclusion, pay. So it's case by case basis of those two main factors.

Yeah. And what you said really was important there, that Cal OSHA, although they provided some limited guidance in their FAQs, it really is up to the employers to figure this out. And we've been having conversations with attorneys in the area specializing Cal OSHA issues, of course, and obviously these things are going to be on a case by case basis. Cal OSHA and the CDPH were very clear not to really define specific rules for this. And some things that help employers at least to look at to determine if they should consider whether, you know, you, Ellen, would have been a close contact if your co worker had tested positive. Is some of these factors that Kelisha talked about. But some other things really related to ventilation, which I found kind of interesting. So we want to look at things like how close was the infected individual to the potential close contact? Like you said, if you're at the other end of the warehouse there at Costco, but much farther away than if you're sharing the same break room, talking about Ted Lasso and having lunch together, how often or thoroughly is the air in that space ventilated and what's the direction of the airflow? This is Something that's been really important over time for Cal Ocean CDPH is this focus on ventilation. It seems to them that the science has shown that the more well ventilated the area is, or the more that the air moves and is cycled through the situation, the less likely it is that COVID 19 transmits in the workplace. So how well ventilated is it? Is it subject to a lot of open outdoor air? Does the air move from one section of the indoor space to another? And at which place was the person downwind, so to speak? And what's the size of the space? Right. Total volume? Does it have high ceilings? Does it have long walls? Is it more enclosed? These are all things that you'll have to work through as an employer because there's no defined specific rule. But obviously the more ventilated and the larger the space is, the less likely you would have to consider them to be a close contact. But Ellen, of course, as you say, it's going to be up to you employer to decide. And if you can't that decision, and it's vital for you to figure that out, really get on the phone with council and work through it with them. And you guys kind of do a balancing test and that's where we're at. Okay, let's move off of that hornet's nest there that we have there, Ellen, because I tell you, we talk about this with members and people at seminar all the time, and all it gets is either blank stares or angry stares and a lot of sighing from that. So Besides the actual COVID 19 workplace rules, obviously the pandemic also changed the nature of work where many employees spend some or all their time remotely now. And we continue to see employers struggle with handling remote work issues such as, you know, when can conduct that occurs over video or online chat constitute workplace harassment? And you know, the spoiler for everybody is it's the same type as if it happened in the workplace. You're in the workplace. If it's some kind of conduct that triggers your harassment prevention policies, then it counts. But we also get these procedural questions, and you and I talked about an interesting one, which is simply, can an employer require an employee to be on webcam throughout the course of the day? And Ellen, can you describe what you had with that question and really what we talked about the member with on that one?

Yeah, you know, we've got a lot of privacy issues going on with remote work, but when we're talking about using a webcam, we've got, we're looking at some serious Privacy issues that probably go way beyond what we're used to in the employer's place of business. So for remote workers, employers are currently using software that provides all kinds of surveillance. They're monitoring keystrokes, they're taking screenshots. There's face scanning software that some companies may be using. They want to make sure nobody but the employee is looking at the computer. Let's say I'm a law firm and I'm reviewing somebody's will or private documents. We want to make sure that no one's peeking over my shoulder and seeing those private documents. So sales of employee monitoring products, including webcams, are through the roof right now. But what about putting a webcam in someone's home office? So first off, let's remember that we're in California and yes, I do say that on the helpline quite often. So we have a much stronger privacy right, much stronger privacy rules than much of the country does. So some of the questions we have to consider in terms of using this type of software or webcams is first, are the employees using their own computers or phones? Are they using company issued equipment? Obviously, I have a much greater expectation of privacy on my own computer than on the company laptop. My computer's got my private emails and texts, my banking information, probably medical records of some sort of that I have a reasonable expectation of privacy in. Are your employees aware that you're using this software or are you secretly spying on them? This goes back to the question of what are my reasonable expectation of privacy in that area? You know, we have to think about the fact that many employees are working in their bedrooms right now. My 20 something kids are working remotely and that's certainly the most private of places for most people. If I don't know that my boss is secretly filming everything I do in my bedroom via my work laptop, well, there's a lawsuit waiting to happen. So webcam, I'm going to say, talk to legal counsel before you go to that nanny boss cam. Yeah.

And with remote work continuing on with this, expenses still kind of are floating out there as an issue. You know, we had previously talked about an increase in lawsuits over expenses that weren't reimbursed by the employer that the employee may have incurred during the course of their remote work. So what should an employer know, again, in a nutshell, about remote work expenses specifically?

So in a nutshell, really, California law pretty much comes down to what are necessary expenses versus what are those that I have because I just prefer to work at home in my bunny slippers. So the labor code that tells us we have to reimburse necessary expenses was enacted way back in 1937, which I'm fairly certain predates the Internet, but now it has to apply to all of these issues. So if we're going to require employees to work from home, then we probably do need to pay for some reasonable amount towards Internet, phone, other kinds of necessary equipment and technology. But what about other things? This is what I'm getting asked about. I got asked about whether we have to pay for toilet paper because, you know, if I were at work, I'd be using the chambers toilet paper. And now I gotta go to Costco and pick up a case of Charmin. What about my heating and air conditioning? It's hot here in Sacramento. I gotta run my air all day instead of going downtown. What about lost income? Because now my extra bedroom is where I work and I can't rent it out on Airbnb. Those issues are still, you know, out there to be determined.

Basically, we got to determine what's necessary. And is the employee working from home based on their preference versus we're reducing our office space. We don't have a desk for you here.

Yeah. And something I really like to highlight is just the breadth of what this statute does. This statue was designed or has been designed over time. As you said, it's very old. But over time, we've gotten court decisions that continue to show how really broadly applicable it is to really any expense or loss incurred by an employee. And like I said, those lawsuits we're seeing are exploring a lot of what you said, those outer bounds things of lost income from renting out the bedrooms to. Exactly. Toilet paper. Like, this is an expense that businesses used to incur in terms of providing restrooms, and now they don't because it's being done at home. And what the courts have often said with these expenses is really, you know, businesses have this public policy of not passing on operating expenses onto their employees. Employees. And so I think if you're concerned about these kinds of expenses, just know that the statute's broad and that this is really a conversation where we should talk with legal counsel about what kind of reimbursement protocol should we set in place? Because, you know, we're two and a half years into the pandemic now, and if your employees are working remotely or in some hybrid situation, it's pretty clear that that's probably going to stick around for you. And so this is something that we're in for the long haul and something to really kind of get nailed down. But it is fascinating to me, Ellen, that we continue to get these questions on expense reimbursements really, for the last like two and a half years. Moving on. You know, a product of the distorted workforce that we've been dealing with, with the pandemic. You know, recently we have the great resignation. I'm not so sure that we're there anymore with that, especially in some industries as the economy is kind of in some weird flux. But something that's been an issue for employers still is the hiring of or the retention of their workers. And something I've seen quite a bit on the helpline has things like bonuses or large substantial increases in salaries based upon a request from an employee just to keep them there. Ellen, what are you hearing about this kind of stuff?

So, you know, I get a lot of wage and hour questions about this sort of thing. But there are also equal pay issues, discrimination issues, all kinds of morale issues. Of course, in terms of wage and hour issues, this is a really easy trap to fall into because when you're going to give me a bonus for hiring me or if I agree to stay, a retention bonus or maybe even a referral bonus to get my friend to come work for the company, that's not a discretionary bonus. That is a non discretionary bonus. If I agree to do something, you're going to pay me a certain amount of money. So we need to turn around and calculate that amount back into the regular rate of pay that you pay me. Assuming I'm a non exempt employee, you're going to have to calculate that amount into my overtime for whatever period that bonus is deemed to cover. Not only overtime, but it's also going to get calculated into my meal and rest penalties, my sick pay, my Covid sick pay. So that's an issue that a lot of employers just haven't perked their ears up yet too. And I can see some lawsuits coming. What do you think, Matt?

Yeah. And you know, for those of you who are frequent listeners of the podcast, you'll know that we just had our employment law policy advocate, Ashley Hoffman, on talking about a bill that's focusing real intently on increasing paid data transparency to address this equal pay issue. So in addition to just the wage and hour components that Ellen has just talked about, which is very real and is a very real trap for employers if they don't consider it as part of that regular rate of pay, is you now need to justify if we're providing compensation to one employee within a class and not to others. And so the Example we always get right is if you don't give me a 20% raise, I'm going to go off to your competitor because I've got this better job offer, I'd like to stay here. And the employer wants to retain the employee. So they say, great, I'll give you this huge, substantial raise. Right. But you have this employee who does the same or substantially similar work to other coworkers, and now that person is being paid at a much different level. And we always have this issue of being able to justify that pay disparity. Now, you definitely can have pay disparities, but you have to be able to justify with some bona fide factor that's a legitimate business reason for which you're making that pay disparity and not have it be shown that it's based upon sex or gender or race or one of these issues. So when you're making these substantial compensation decisions where you're going to elevate one or two over others, you need to be confident in how you're going to explain the disparity if it ever comes up, especially with California's focus on increasing pay data transparency here. So, Ellen, of course, being summer, we tend to get a high number of calls about hiring minors who are out of school first. What are the considerations employers need to work through to hire minors in the first place?

The first thing, of course, is that all minors need to have a work permit, even when they're out of school. We get asked all the time, you know, kids are out of school this summer, why do they need a work permit? And where do they even get it if the school is closed? But in California, they've got to have a work permit year round unless they're 18 or have graduated from high school. And then of course, you got to pay attention to the hours that they're allowed to work. There's only so many hours per day, that spread of hours that can't work before certain hours, after certain hours, and all that depends on how old the minor is. The labor commissioner has a great child labor booklet available online. We've got a link to it on our HR California website. And you can see all the rules depending on the child's age. Yeah.

And you've got an interesting question I thought was just a neat little tidbit to round out this discussion about what if I'm the parent of the child and I'm hiring them to do work? What happened with that call?

Yeah, so it was a HR professional that called me and the boss wanted to hire his 12 year old. And you know, under most circumstances, the answer to that question is no. In general federal law, this is not just a crazy California law. In general federal law says no one under 14 can work except in extremely limited circumstances like on their parents farm or believe it or not, making Christmas wreaths or occasional babysitting, lawn mowing, that kind of thing. So the takeaway is HR directors don't let your kids come in and file time cards and FMLA paperwork just to keep them busy during the summer. Check the child labor laws, have the proper work permits, all those things. Now there is one exception under federal law, even for really young kids, but they have to work in a company that is wholly owned by their parents and even then not in every kind of job. So be careful.

Yeah, and I think it's really important to highlight, you know, we absolutely can hire minors, but there are just a strict set of rules. Take a look at that DLSE Hiring Minor booklet that we talked about there and that'll get you right through any of those issues related to hiring minors. Okay, Ellen, you and I both know there's always a very real human element to human resources and personnel management. And, and again, for those frequent listeners here on the podcast, we get to work through some of these human issues on the helpline that we talk about. So Ellen, as always, these are some of my favorite parts of this podcast. Let's run through a few quickly that you've seen recently, starting with an employee who had some domestic violence issues that were being accommodated by their employer. What happened with that one?

So, yeah, it was an employer who was happily accommodating the domestic violence issues that the employee was going through. They were providing additional security at work, giving her time off to get temporary restraining orders, doing absolutely everything that they should. In fact, I talked with them several times over the course of a couple of weeks until the last call when they informed me that that employee had in fact had a gun shipped to herself to the company mail room. And they thought, well, is that a little far as far as accommodation goes? And the answer is absolutely yes. The employer had a very clear policy in their employee handbook, no guns or other weapons in the workplace. And being a victim of domestic violence was not enough to override those rules. So the employer could discipline the employee, even terminate the employee for violating such an important safety rule. Matt, I thought it was an interesting twist actually on this story that the employee did in advance tell the mailroom clerk to accomplish expect a package with a gun in it. And the mailroom clerk didn't think that maybe they should report that up the chain. Yeah.

And this goes back to training. And what I find really fascinating about this is, you know, Cal, OSHA is focusing again on workplace violence standards that are going to apply across the board to our employers. They've explored this in the past. Couldn't quite get to a workplace violence standard for our California employers, but they're back at it again this year. And so this is a good opportunity, especially while we're in the summer lull, to look at what our workplace violence prevention and mitigation strategies are. And of course, as you said, maybe we might want to train our employees on our weapons policy. For example, let's not keep it secret that somebody is bringing a gun into the workplace, especially in light of all the incidents that we've had. Moving off of that, Ellen, you've also had a situation where an employee above with some dry cleaning. What happened with that one?

So this was a situation with an employee who actually had been terminated recently. But while she was still working there, her boss asked her to take his dress shirts, which he alleges are worth about $1,600, to the dry cleaners. And then she got fired and she never gave him back. So the firm's HR director was asked to call us to find out how he's supposed to get the shirts back and if he can file a police report. So, you know, I understand the frustration. You got to have your dress shirts even in, you know, casual dress days, I guess. But this person was no longer an employee of the company. They didn't really have any authority or power over her. So now it's really just a Judge Judy small claims kind of issue that they could go after her for. The employer also wanted to know, well, can we deduct the value of those shirts from her final paycheck? And even though these apparently spun gold sixteen hundred dollar shirts, we want the money back. The employer would have to prove deliberate theft in order to deduct from the final paycheck. And all the employee would have to do is bat her eyes at the labor commissioner when her final check was withheld and say, I didn't steal them, I just forgot they were in my trunk. And then the employer's on the hook for all kinds of penalties. So, yeah, it's back to Judge Judy, I guess.

Yeah. And that best practice really is unless you are so certain that you've got this ground to stand on for deductions from final pay, just don't do it. It's never Worth it.

Not worth it.

Ellen, we're going to end today with bathroom questions. Weird, I know, but we've seen some very interesting bathroom questions come across the helpline lately. First, you know, we continue to see questions related to gender identity and restroom usage. This was something that. That came about as a result of some regulations from the Department of Fair Employment and Housing several years ago. How does restrooms and gender identity work for our California employees?

You know, the short answer, Matt, is that California employees, plain and simple, are allowed to use the restroom that aligns with their gender identity, Period. We cannot say to employees, well, since you're transitioning or since you're transferring transgender, you got to use this little single stall restroom over here rather than the main bathroom. It's just not an option. They, you know, everybody uses the one that aligns with their gender identity, and we're all going to be getting used to it. Yeah.

What I get all the time is, but, Ellen, we have employees who are uncomfortable with that usage. And what I like to talk to them about is, I understand these are the rules. We have to kind of deal with what our workplace rules are, but they don't change the health and safety rules. Right. So if somebody is using a bathroom, whatever their gender identity is, and they're creating a health or safety issue within the restroom, that's something that we can regulate and talk to the employee about. But, you know, the idea that somebody has a gender identity that may be different from what you'd expect using the restroom, that's something that we just accommodate here in California. Now, talking about health and safety in the restroom, we're going to end today with a doozy you got about restroom investigations and hygienic practices there. What happened there? And with these calls we generally get about bathroom hygiene.

Well, Matt, I gotta say, never back when I was in law school did I ever think that my career would involve helping an employer figure out who was leaving piles of poop on the bathroom floor, which is, in fact, a question I received just this week. In the past, we've received questions. Who's peeing all over the toilet seats and the floor in the women's restroom? Who's leaving used adult diapers on the bathroom counters? Most people would be surprised by how many questions we get about these issues. So, first of all, no, you cannot install a video camera in the bathroom. There is a specific California law that says that's a no, no. But these are indeed health and safety questions employers need to address, and you address them the same way you address any other workplace issue, you do an investigation, you gather your facts, you interview witnesses, you do your best to try to figure out what's going on and who's involved. Then if you figure out who's leaving the piles of poop in the bathroom, you talk to the employee and you get their side of the story.

And then you tell them not to do it anymore. And yeah, maybe you discipline them for it, but what if they say it's a disability related thing? I can't get to the toilet in time, I have urinary issues and I have to wear a diaper. So now we can ask for medical certification and then we've got to talk about reasonable accommodation, maybe allowing that employee to use a private bathroom if they need to. Maybe working from home, a special disposal can available for adult diapers. Matt, I know these are difficult conversations to have with an employee and we have to handle them in a sensitive way, but that's why they pay you HR directors the big bucks, right?

Wow, Ellen, what a call. As I said, there is this real human element to managing a workforce. Ellen, thank you so much for joining me today and sharing your experiences and expertise from your role on the helpline.

Thanks Matt for having me on.

And thank you listeners for joining the discussion on the workplace. Please comment, share and subscribe to Cowchamber's podcast by visiting Cowchamber.