Covid-19 Pandemic Violations Posted a Significant Challenge for California Employers in 2020

Many agree that the pandemic and related issues were the most significant challenge California employers faced in 2020. As we approach the end of the first quarter of 2021, Covid-19 related litigation continues to evolve along with California workplace standards. While hundreds of Covid-19 related employment complaints were filed in 2020, only a small percentage were collective actions or class actions, but this could change in 2021. 

Covid-19 Pandemic Could Cause Increase in Wage and Hour Collective Actions in 2021:

Many expect a significant increase in the number of wage and hour collective and class actions in 2021 as the nation adjusts to the pandemic's fallout and the lingering effects on the public and the economy. One of the main factors for the change is the drastic increase in telecommuting during 2020. By the end of 2020, there were twice as many employees telecommuting as employees working on site. While restrictions may lessen, this scenario is not expected to revert to "normal," at least not immediately. An increase in telecommuting workers naturally leads to an increase in "off-the-clock" claims by nonexempt employees and class action wage and hour lawsuits claiming unpaid business expenses due to home office costs. 

At-Risk Areas for California Employers: 

Many California employers are at risk of employment law violations due to timekeeping practices and policies that are not appropriate for a virtual workplace. Many California employers who abruptly transferred in-office employees to telecommuting status during the pandemic never addressed issues of non-compliance related to employee hour tracking, rules and policies regarding off-the-clock work, and compliant practices for business expense reimbursement. Without adjusting these practices and policies, California employers will have difficulty not violating employment law. 

California Employers at Risk for Wage and Hour Class Actions: 

In addition to concerns regarding updated policies and procedures to address a telecommuting workforce, specific industries and types of employers find themselves more at risk for wage and hour class actions filed by on-site employees. Many on-site, essential workers subject to waiting in line for new, mandatory temperature scans may have legitimate overtime or off-the-clock claims. On-site, exempt management employees are stepping in to perform an unusual amount of nonexempt work to decrease payroll costs and cover for employees out due to sickness, etc., due to the pandemic. Many may claim the situation makes them nonexempt employees. 

2021 will see the number of other pandemic-related class action lawsuits increase, as well: discrimination cases connected to which employees are selected to return after extended furloughs, claims in connection with employers requiring COVID-19 vaccinations, etc. 

If you have questions about California labor law violations or how employment law protects you against labor law violations, please get in touch with Blumenthal Nordrehaug Bhowmik DeBlouw LLP. Experienced employment law attorneys are ready to assist you in various law firm offices located in San Diego, San Francisco, Sacramento, Los Angeles, Riverside, and Chicago.

California’s New Covid-19 Exposure and Notification Law Effective Jan. 1, 2021

California employers are preparing to implement new policies and procedures to comply with California’s new Covid-19 Exposure and Notification Law going into effect January 1, 2021, California A.B. 685. 

What is California A.B. 685: California’s New Covid-19 Exposure and Notification Law

The new law creates reporting obligations requiring California employers to provide their employees, local public health officials, and the California Occupational Safety and Health Administration (Cal-OSHA) with written notice of Covid-19 cases. The law is in place effective January 1, 2021 through January 1, 2023. Failing to comply with the new law leaves California employers open to civil penalties and citations. 

Summary of California’s New Covid-19 Exposure and Notification Law: 

California A.B. 685, California’s new Covid-19 Exposure and Notification Law, is codified under California Labor Code section 6409.6 (and sections 6325 and 6432). Applicable sections define new requirements for California employers regarding the notification of employees, their subcontracted workers’ employees, union representatives, etc. of any suspected or confirmed cases of Covid-19. The new law also stipulates requirements regarding California employers’ obligation to report workplace “outbreaks” of Covid-19 to local health departments, and the appropriate agencies. Notification should occur within one business day of the possible exposure based on any confirmed positive case of Covid-19 in the workplace. 

Written Notice Requirements for California Employers:

When a California provides “written notice” of a potential Covid-19 exposure, the written notice may include any delivery method (hand delivery, email or text), as long as the delivery method allows the employee to receive the notice within one day of it being sent. The notice must be provided in both English and the language used/understood by the majority of the employees in the workforce. Notices of potential exposure should not include the name of the employee who tested positive for Covid-19 in order to protect the employee’s privacy. Employers are required to maintain a record of any written notice of possible Covid-19 exposure sent to employees for a minimum of three years. Employers must report any “Covid-19 outbreaks” to their local public health agency within 48 hours of learning of the situation. As of Dec. 3, 2002, a Covid-19 outbreak in a non-healthcare workplace is defined by the CDPH as having at least three probable or lab confirmed Covid-19 cases among workers at the same worksite within a 14-day period. 

California Employers Should Take Action to Comply with New Standards Now:

California employers should take action right away in order to coordinate documentation and tracking procedures, in addition to necessary safety processes and notification methods, to keep their workforce safe and comply with new requirements. California employers’ efforts to comply should involve: 

• Creating and implementing safe, effective procedures to minimize the risk of spreading Covid-19 in the workplace. 

• Documenting and implementing disinfectant procedures for confirmed Covid-19 exposures in the workplace. 

• Developing an effective employee notification process for any potential Covid-19 exposures. 

• Developing applicable documentation and a process for notifying employees regarding Covid-19 benefits. 

If you need to discuss Covid-19 dangers in the workplace or if you need to file a California employment law class action, please get in touch with Blumenthal Nordrehaug Bhowmik DeBlouw LLP. Experienced employment law attorneys are ready to assist you in any one of various law firm offices located in San Diego, San Francisco, Sacramento, Los Angeles, Riverside, and Chicago.

California HUB Employee Sues for Discrimination Amidst Covid-19 Lockdown

Drisana Wallace is a former insurance account executive for HUB International Insurance Services Inc.. HUB International Insurance Services Inc. employs more than 10,000 employees in over 375 offices across the nation and into Canada. Wallace was employed at one of HUB’s California locations. Wallace filed a lawsuit after she was allegedly fired from her job in retaliation after she complained about her supervisor’s discriminatory behavior regarding her working from home to care for her two children during the Covid-19 pandemic.

Former Insurance Account Executive Files a Discrimination Lawsuit:

Wallace filed suit in the Superior Court of California in San Diego, California. The lawsuit alleges discrimination, retaliaiton, gender harassment, and wrongful termination. Wallace listed HUB International Insurance Services Inc. as the Defendant in the case. Wallace seeks damages from lost earnings and benefits plus emotional distress and loss of reputation.

The Plaintiff’s History with the Company:

Wallace worked at the San Diego HUB office from August 2019 through June 2020. She alleges that her supervisor (and executive vice president), Daniel Kabban, had a problem with her working from home and caring for her two children during the Covid-19 lockdown. Wallace was terminated after she complained about the discriminatory behavior she was experiencing from her supervisor.

Altered Work Circumstances In the Wake of the Covid-19 Pandemic Lockdown:

When the lockdown went into effect due to the Covid-19 pandemic, Wallace was unable to arrange childcare for her two children (aged 4 and 1 year old) due to the scarcity of available daycare and babysitting services during the lockdown. While Wallace was able to perform her job duties, it did take a toll on her children (one of whom was nursing at the time). While the plaintiff was working, her children were in front of the tv, which made Wallace feel guilty. She stopped working during her regular lunch break to feed her children and put her younger child down for a nap, and then returned to work. On most days, she didn’t have enough time to actually eat lunch - and was drinking coffee to get through the days. Wallace also frequently worked at night while her children were sleeping. Wallace felt that she and her children sacrificed to make it possible for her to keep her commitments to her employer. Wallace eventually contacted human resources to request help and was told HUB managers were expected to be flexible.

After Complaining to Human Resources, Plaintiff Got an Unexpected Result:  

The response received from human resources left Wallace under the impression that HUB would support her during the lockdown. However, Wallace’s supervisor, Kabban, seemed to be biased against mothers and began a litany of sexist statements, and insisting that she keep her children silent during phone calls, which was difficult since the phone calls occurred while the children were awake since Kabban consistently scheduled calls during lunch times when Wallace was feeding her children, nursing the baby and trying to make naptime happen. Kabban also increased the amount of rush tasks with immediate turnarounds he expected from Wallace, questioned her availability, and offered fathers working from home much better treatment.  After contacting the human resources department again to advise them of the continuing bias and sexism, Wallace was advised she was terminated due to reduced revenue during the Covid-19 pandemic.

If you need to discuss employment law violations in the workplace or file a wrongful termination lawsuit, please get in touch with Blumenthal Nordrehaug Bhowmik DeBlouw LLP. Experienced employment law attorneys are ready to assist you in any one of various law firm offices located in San Diego, San Francisco, Sacramento, Los Angeles, Riverside, and Chicago. 

More California Professionals Working from Home in 2020: Deducting for Business Use of a California Residence

As more and more professionals work from home in 2020, California law firms, securities firms, banks, and other intellectual enterprises are carefully considering the application of IRS Code Sections governing deductible expenses related to qualified business uses of a home (Rev. Proc. 2013-13 (IRS RPR), 2013-6 I.R.B. 478, 2013 WL 161197, IRS Code 26 CFR 601.105).

IRS Revenue Procedure Released in 2013 Provided the Optional Safe Harbor Method: 

In 2013, the IRS released Revenue Procedure 26 CFR 601.105, which provided an optional Safe Harbor Method for taxpayers to use when determining the amount of deductible expenses related to the use of their home for qualified business purposes. Many California law firms, securities firms, banks, and other intellectual enterprises can turn to the Safe Harbor Method as an alternative to calculating, allocating, and substantiating actual expenses as required by § 280A of the Internal Revenue Code. The Safe Harbor Method is effective for any taxable year since 2013.

Safe Harbor Method Simplifies Business Use of Home Deductions for California’s Small Business Owners:

The calculation, allocation, and substantiation of any allowable deductions due to using a part of a residence for business purposes can be overly complicated and troublesome for California’s small business owners. The IRS and the Treasury Department are aware of the issue. The safe harbor method attempts to minimize recordkeeping, administrative, and compliance requirements used to determine allowable deductions under § 280A. Under the safe harbor method, California business owners can determine allowable deductions for business use of their residence by multiplying a predetermined rate (currently $5.00) by the amount of square footage dedicated to business use in their home (not to exceed 300 square feet).  

The Safe Harbor Method is an Alternative to Itemized Deductions for Business Use of a Residence:

The safe harbor method is a replacement of calculating actual expenses under § 280A. If a California small business owner elects a safe harbor deduction, they cannot deduct any actual business expenses due to qualified business use of their home in the same taxable year. Taxpayers using the safe harbor method to determine deductions must still comply with requirements outlined in § 280A regarding determining eligibility to claim a deduction.

Reimbursements & Other Expense Allowance Arrangements for Employees Working from Home:

The safe harbor method does not apply to employees working from a home office if they receive allowances, advances, or reimbursements for business expenses connected to the qualified business use of their home. Reimbursement is required under California Labor Code Section 2802, so California employees working from home should be cautious claiming safe harbor deductions if they have any expense allowance or reimbursement arrangement with their employer (as defined by  § 1.62-2).

More California Professionals Working from Home in 2020:

With more professionals working out of their homes for significant portions of 2020, both employees and employers must consider the financial implications.

If you have questions about California labor law and how employment law protects California workers working from home in 2020, Blumenthal Nordrehaug Bhowmik DeBlouw LLP wants to help. Experienced employment law attorneys are ready to assist you in any one of various law firm offices located in San Diego, San Francisco, Sacramento, Los Angeles, Riverside, and Chicago.

Are Workers Being Penalized for Reporting Covid-19 Safety Violations in the Workplace?

While many California employers and companies throughout the nation take the threat of Covid-19 seriously, and do their best to implement all safety recommendations from government agencies, there are some who dismiss the threat.

When Companies Fail to Comply with Safety Measures Recommended by Government Agencies:

When companies fail to respond to the threat by complying with safety recommendations suggested by government agencies (or complying with mandates from their local, state, or federal government), they put their employees and their customers at risk. However, some employers are doing just that. Employers choosing not to adhere to safety recommendations may refuse to provide necessary masks or other PPE to their employees, they may fail to allow employees to exercise social distancing, they may deny employee requests to work from home, etc.

Ultimatums to Return to Work During the Covid-19 Pandemic:

In some instances, employees that complained to their employer or to their employer’s Human Resources department about the failure to implement safety measures in their workplace met with resistance. In other cases, these employees experienced retaliation or even termination in response to their complaints. Some employees who requested telecommuting due to the dangers presented by the pandemic were told to return to work or resign.

Employees Fired for Refusing to Return to Unsafe Workplaces During Covid-19 File Suit

Many employees fired for refusing to put themselves and their families in danger by returning to unsafe workplaces in the midst of the Covid-19 pandemic are filing suit. Under California’s whistleblower law, and the Conscientious Employee Protection Act, employers are prohibited from firing, demoting, or retaliating against workers in any way due to a worker’s refusal to participate in activities that the employee believes are incompatible with safety mandates or public health.

More Employers Are Asking Employees to Return to Work:

As more employers start to encourage workers to return to the office, the number of employees resisting what they see as unsafe or unhealthy workplace conditions is growing. Employees facing adverse action due to this unprecedented scenario can turn to legal protections in place for whistleblowers. There are currently 23 federal whistleblower statutes in place to protect workers from retaliation if they report workplace safety violations. These statutes are enforced by the Occupational Safety and Health Administration, and the U.S. Department of Labor.

Covid-19 Related Lawsuits Are On the Rise:

Whistleblower complaints filed with the Occupational Safety and Health Administration increased by 30 percent between from February 2020 to May 2020. Almost 40% of the significantly increased complaints  were Covid-19 related - filed in most part by employees who allege they experienced adverse employment action after they reported workplace safety violations. It’s estimated that approximately 170 retaliation/whistleblower suits have been filed across the country; making retaliation/whistleblower lawsuits the 2nd largest category behind remote work/leave lawsuits. And more Covid-19 related suits have been filed claiming wrongful termination.

If you need to discuss workplace retaliation or if you need to file a California wrongful termination lawsuit, please get in touch with Blumenthal Nordrehaug Bhowmik DeBlouw LLP. Experienced employment law attorneys are ready to assist you in any one of various law firm offices located in San Diego, San Francisco, Sacramento, Los Angeles, Riverside, and Chicago.

Common Employment Law Allegations in the Wake of COVID-19 Changes in the Workplace

The response to the spread of Covid-19 through the United States resulted in a major upheaval in the average workplace. American employers suddenly found themselves creating new policies and implementing new procedures to address the various issues that were suddenly “typical.”

Workplace Issues that Suddenly Became the Norm Due to Covid-19 and Workplace Changes:

• Remote Work/Telecommuting

• Layoffs

• Furloughs

• Pay Cuts

• Altered Workplace Conditions

Covid-19 Leaves California Employers at a Higher Risk of Exposure to Employment-Related Claims:

Due to the speed with which employers had to respond to the changing conditions, mandates, and safety issues related to Covid-19, California employers find themselves subject to a higher risk of exposure to employment-related claims such as: wrongful termination, workplace retaliation, discrimination, etc.

Common Employment Law Claims Related to Covid-19 Changes to the Workplace: Workplace Health & Safety

Covid-19 related employment law claims related to workplace health and safety typically claim that due to an unsafe workplace or work environment:  

• An employee was exposed to the virus which caused sickness or death

• An employer did not take appropriate measures to reduce exposure to the virus

• An employer failed to take necessary precautions to minimize the spread of the virus in the workplace

Some Appropriate Measures Employers are Expected to Make in California Workplaces:

In response to the Covid-19 pandemic, California employers were expected to make a number of different changes in the workplace to protect their employees, customers, etc. Some appropriate measures that employers should take include providing hand washing stations, masks or other protective gear in the workplace, making hand sanitizer available in the workplace, etc. In addition to providing the necessary “supplies,” employers are also expected to provide the ability for employees to be safe on the job by complying with social distancing recommendations.

Common Employment Law Claims Related to Covid-19 Changes to the Workplace: Leave Claims

Covid-19 inspired the Families First Coronavirus Response Act (FFCRA), including the Emergency Family and Medical Leave Expansion Act and the Emergency Paid Sick Leave Act. Under FFCRA employers with 500 or fewer employees are required to provide employees expanded paid family and medical leave, as well as emergency paid sick leave. The Act incorporates the Family and Medical Leave Act (FMLA) and Fair Labor Standards Act (FLSA) provisions. Employers who fail to comply with the provisions providing leave to employees are liable to remedy provisions.

Common Employment Law Claims Related to Covid-19 Changes to the Workplace: Wage and Hour Claims

Many employees are suddenly required to work from home and some employers are restructuring their workforce, making pay/salary adjustments, etc. This reshuffling is necessary to keep some companies running, but employers are inadvertently (or blatantly) making changes in violation of laws related to salary and hour reductions, employee classification, etc.

Common Employment Law Claims Related to Covid-19 Changes to the Workplace: Discrimination & Disability Claims

In the wake of Covid-19 related layoffs and furloughs, many employees are filing employment law related claims challenging the “reason” their employer provided for their termination or other adverse employment action. Since numerous federal and state laws protect employees from discrimination in the workplace based on protected class characteristics, employers who do not remain objective when deciding which workers to lay off or furlough may be in violation of labor law. Other Covid-19 related claims come from employees who are denied accommodations for a disability related to Covid-19 - the most common being denial of an employee’s request to work from home.

Common Employment Law Claims Related to Covid-19 Changes to the Workplace: Retaliation Claims

State and federal laws contain provisions that protect employees from retaliation in the workplace. Some employees are filing claims alleging workplace retaliation after objecting to unsafe working conditions in the wake of Covid-19. For example, being demoted or laid off after complaining about exposure to individuals exhibiting symptoms in the workplace.  

Common Employment Law Claims Related to Covid-19 Changes to the Workplace: Wrongful Termination Claims

As the response to the pandemic leaves many businesses searching for ways to minimize expenses, employee furloughs and layoffs increase. With this increase, it’s not surprising that the number of wrongful termination claims is also on the rise. Employees citing wrongful termination in the wake of Covid-19 do so for a number of reasons including: termination after filing a complaint for lack of appropriate PPE, termination after complaining about exposure to co-workers showing Covid-19 symptoms, etc.

These are just a handful of the common Covid 19 related employment law claims. If you need to file a California Covid-19 related employment law claim, get in touch with Blumenthal Nordrehaug Bhowmik DeBlouw LLP. Experienced employment law attorneys are ready to assist you in any one of various law firm offices located in San Diego, San Francisco, Sacramento, Los Angeles, Riverside, and Chicago.

Are California Employers Retaliating Against Low Wage Workers Insisting on Covid-19 Safety Accommodations?

In June, a California employee at a Boyle Heights McDonalds location, Lizzet Aguilar, went on a four-day strike demanding that the company provide workers with appropriate protective equipment and put social distancing regulations in place at the fast-food restaurant to help fight the spread of coronavirus. Aguilar’s supervisor allegedly responded harshly, escalating adverse treatment towards her after the strike, and insisting that she work faster while telling her co-workers not to assist her.

Are California Employers Retaliating Against Workers Concerned About Covid-19 Safety?

Aguilar claims that her supervisor was tougher on her after she demanded changes for Covid-19 safety. According to Aquilar, the supervisor was stricter and yelled at her more on the job. The surge in California coronavirus cases fueled by the reopening had many California businesses escalating their safety protocol, implementing stricter social distancing measures, etc. However, other California employers failed to respond actively. While public health officials state that making workplaces safer is an essential element to slow the spread of coronavirus, many low wage workers are not voicing safety concerns in fear of workplace retaliation.

Essential Workers and Low Wage Workers Worry About Their Jobs

The pandemic is taking its toll on California’s essential workers. A significant number of California’s essential workers working in factories, retail establishments, hotels, hospitals, or agricultural fields throughout the state are wary of voicing Covid-19 safety concerns. Some fear voicing their concerns because they are in the country illegally and don’t qualify for unemployment benefits. If they lose their job, they may not find another. When working for a California employer who doesn’t provide proper protections, they’re forced to choose between risking their job security or risking their health and safety.

California Labor Law Protects Against Workplace Retaliation:

California law protects workers from retaliation in response to voicing safety concerns or refusing to engage in work that could be hazardous. Suppose a California employee is targeted by their employer or a supervisor on the job because they voice safety concerns. In that case, they should contact a California employment law attorney as soon as possible. Many companies are already facing legal action for failing to enforce mandates on masks and physical distancing to slow the spread of Covid-19, and experts believe that only a fraction of the claims have been filed. Many of the workers who already filed complaints are essential workers – some undocumented workers.

If you need to discuss how to file a workplace retaliation lawsuit or if you have questions about identifying California Labor Law violations, please get in touch with Blumenthal Nordrehaug Bhowmik DeBlouw LLP. Experienced employment law attorneys are ready to assist you in any one of various law firm offices located in San Diego, San Francisco, Sacramento, Los Angeles, Riverside, and Chicago.