Episode 45: Podcast Shares Questions Asked Most Often at Employment Law Updates Seminars

Welcome to the Workplace, a podcast by Cal Chamber. I'm Erica Frank, Cal Chamber's General Counsel and Executive Vice president. And back on the podcast today with me are Bianca Saad and Matthew Roberts. Welcome back, you two. Thanks.

Happy to be here.

Thanks for having us, Erica.

All right, so the three of us have been touring the state of California throughout the month of January doing Cal Chamber's annual employment law updates. That's where we speak to a number of attendees, a number of HR professionals, business owners, attorneys, all about changes that transpired over the previous year that impact workplace practices and policies for 2020. So you can imagine we had a lot to talk about because we were covering legislative changes as well as recapping court cases from 2019 that have an in today's world, there were so many questions, don't you think? Don't you both agree?

Yeah, it was really great. The seminars are wonderful because of the interactivity between ourselves and the attendees that come.

Yeah. And there's always a wide range of the questions that we get.

And you know, interestingly, we pretty much do the same presentation at every location because there's really, there's no need to change. There's different audience each time and the content hasn't changed. And what I always find so interesting, and I've noticed this year after year, the question tend to be about the same. In other words, the topics that spur the most question and inquiry tend to be the same no matter where we are. So what we wanted to do today is share with all of you some of those questions or topics that generated the most questions while we were on the road, whether we were in San Diego or in San Jose. So let's get started. First, you know, as all of us know, we now have what's deemed or coined the Crown Act. And what the Crown act did was include in the definition of race to also include traits historically associated with race, including but not limited to hair texture and protective hairstyles. What was interesting, though, was the types of questions that we were receiving.

Right. So the first thing that we noted is that many employers have dress code policies within their handbooks. And so there's some questions as to whether or not this updated definition of race impacted not only the their dress code policies, but also the EEO policy as well, and whether they had to add protected hairstyles or textured hairstyles to their policy in the EEO policy.

And just for a recap, in this statute, it does define protective hairstyles to include but not limited to hairstyles, such as Braids, locks, and twists. Now, one would think that we would have received a number of questions about the actual hairstyle, but that wasn't the case, was it?

No, it absolutely wasn't. We got questions regarding safety. Can we still require our employees to wear safety protective headgear? Say, if they're working on manufacturing equipment, can we require them to tie back their locks or their braids? We also got questions about hair color, but not necessarily the texture and protective hairstyles. And of course, the common one was, what do we do with the employees that are showing up with electric pink or electric blue hairstyles?

And in fact, one attendee did have pink hair, and I thought it was fantastic. And of course, the answer is.

The answer is you can still prohibit that kind of hairstyle on the basis of their color, because it's not part of the definition of race here under the Crown Act.

All right. Another topic that spurred quite a bit of questions and commentary was the expansion of California's lactation accommodation law, which we have previously discussed on the podcast as we entered 2020. And so it wasn't surprising that there were a number of questions, given the fact that we now have a new policy that needs to be handed out and the fact that now there's very specific provisions as to what the location has as far as a place for a breast pump and personal items. But there were some other questions that we had, too.

Yeah. To start, one of the questions that we got quite a bit is whether the room actually needs to be solely dedicated for the purposes of lactation. And of course, that it's not the case. As long as the room is available for a lactating employee to use and meets all of the other requirements, that's going to be enough.

And I know that there was also questions about conference rooms being used.

Did you have to have an identified room that nobody else could ever use?

Again, it doesn't have to be blocked off only for lactating employees. For example, you could have a multipurpose room, for example, a conference room. If that conference room is going to otherwise meet the requirements, and as long as that employee's use for lactating purposes takes precedence, that's going to suffice.

So one of the examples that we were using is if the conference room is the lactation room and there's a meeting that's going on, but now the employee who needs the accommodation needs the room, the employee that needs the accommodation gets the room, and the meeting has to go someplace else.

That's exactly right.

And what about as far as distributing the policy. I know there was a lot of questions about who actually needed to receive the policy as opposed to what the statute said. As far as who the employer has to provide the policy to.

Yeah, yeah, that's a great question. As far as distributing the policy, the statute doesn't distinguish between, you know, gender, whether you're male or female. It simply requires that the policy is going to be distributed at the time of new hire when an employee is requesting parental leave, in addition to also being included in that handbook.

So it doesn't matter whether it's male, female, whatever the case may be.

That's exactly right. It doesn't matter. It needs to be distributed to all employees, regardless of their gender.

And that's at time of hire and when a request about parental leave is made.

Yes.

Okay. All right. Another topic that actually caught me by surprise, that generated a lot of questions was another topic that we have covered on the podcast. We actually covered it over the summer when these new rules were being promulgated and about to take effect. And that has to do with the wildfire regulations. Now, of course, California wildfires have become the new natural disaster that's impacting California. And unfortunately we've seen our share this past year. Not as bad as in previous years, but nonetheless still had quite an impact on workplace, on employees lives and of course, on the environment and what have you. So we did cover the wildfire regulations and surprisingly we had a lot of questions about them.

Yeah, we did. And just as a broad recap on those, it generally just obligates employers to view the air quality during the times of wildfires and if it reaches a certain concentration of smoke, requires the employers to take some kind of protective measures for the safety of their employees, such as bringing them inside or offering them respirators. Now, a common question that we got was, well, how do I know if this wildfire regulations apply to my business? And that's where things got tricky for a lot of the attendees, is because the regulations are so broad, it basically obligates employers to undertake these actions if any of their employees spend a cumulative one hour outside or are exposed to outdoor air for a cumulative one hour.

So if I recall correctly, a lot of the questions centered around, well, what about the employee that spends some time outside, but not their entire day? So sort of that coming and going between inside and outside.

That's right. An interesting part of the regulations requires kind of an update to your IIPP or your injury and illness prevention plan, which includes how you're going to communicate with employees and how you're going to prepare for those employees who may be subject to this outdoor smoke. And in a lot of cases, some of the best practices there are just to be prepared to have that communication plan in place. You know, it is the winter, we're not seeing wildfires right now. But also to provide those respirators, maybe for use in their vehicles to have handy in case the outdoor smoke does get to a level where they need to use it.

Yeah, there were questions about employees that drive to different locations. And what do you do when they don't come to the central workplace to pick up your respirator mask? How should employers account for that? Again, oftentimes employers have to think outside the box a little bit to ensure that they're providing the equipment that they need to provide. It should be noted that those wildfire regulations are still in emergency regulation status, meaning that we still need a final rule, which we know is coming at some point, that we haven't seen anything finalized yet.

That's right, Erica.

So, you know, the other topic that I think really is one that is very familiar to those that are listening to the podcast, and that has to do with meal and rest breaks. Now, the requirement for meal and rest breaks has been around for a long time, and it has certainly been an area that employers have seen quite a bit of lawsuits and have unfortunately defended themselves and had to pay a lot of money because of a mistake within meal and rest break or the lack of having a consistent policy or enforcing the rules. And last year, we saw a number of cases regarding meal and rest break rules. So we thought it was a very good opportunity to not only bring everybody up to speed on what is the latest and greatest with regards to meal and rest break litigation, but we also discovered that this is still a rule that's troubling a lot of employers, whether that means they're having a difficult time ensuring that their employees are are taking their meal and rest breaks. Even though we know the court and Brinker said you don't have to insure, you have to provide, the reality is there still is that aspect of insuring. What do you guys think?

Yeah, that's exactly right. There's still so much litigation around this issue. And it really comes down to when you're looking at all of the issues, the best practice is first and foremost going to be to have that meal and rest break policy in place. That's going to let the employees know as far as what the expectations are when they need to be taking their meal and rest breaks. And also that the policy is in fact enforced when those meal break violations occur.

That's such a good point because we have seen cases where the employer has actually been able to win on a meal and rest break violation claim. And part of it is because they had a meal and rest break policy in place and they were enforcing it. And in fact, there is a case that the California Supreme Court will decide at some point about whether California law even requires a meal and rest break policy in place, which is quite interesting. And it'll be certainly a question that all employers should be looking for the answer granted. Cal Chamber, We've always said a best practice is to have that policy in place.

Yeah. Yeah. The court will be addressing, in fact, whether the absence of that formal policy is going to be considered a violation of California law. So that's going to be a big one.

Yeah. And we also talked about a case that had to do with rounding of meal break policies. Yeah.

And the rounding situation is interesting because the cases that we've seen come down over the years has just been about whether or not rounding time punches are okay, as it is in the context of overtime. As we know with the meal breaks, we have to provide uninterrupted 30 minute meal breaks at a minimum. And when the case we had with the rounding is the rounding would make them look like they're 30 minutes, but the actual punches weren't 30 minutes. The court case indicated that the rounding practice was okay, but that case is subject for review. But what was interesting is we do have a number of members who do have rounding practices. It's important to note for those who do to continue to audit those time punches to make sure that the rounding, excuse me, is still compliant with California law.

And I'm going to even take it a step further simply because I think meal and breast breaks is such a tricky topic that you consult with legal counsel if you do round your meal breaks because it's just too easy to find yourself defending a lawsuit when maybe you didn't have to and you just needed to make some adjustments. But I think one of the takeaways here, and a good place to end today, is for everyone listening to revisit what your meal and rest break policies are. It's always a good idea to periodically send an email out, send a memo out, however you choose to communicate with your workplace, reinforcing what your meal and rest break policy is and what the state of California requires of our hourly employees as far as their right to take those rest breaks and that meal break Again, the meal break. It's not about eating. It's about being off duty and having at least 30 minutes of uninterrupted time to be able to take a step away from regular duty in the workplace. And with that, we can close out today's podcast. We hope to talk to you again about other exciting issues, and I imagine that the things that we talked about today are going to be things that we're going to be talking about again in the future. Thanks for listening to the Workplace. Please subscribe, share and comment about Cal Chambers podcast by visiting calchamber.com.