The term “hostile work environment” is used – or rather, misused – so often, that its meaning has become somewhat obscured.  In an office full of fans of the local sports team, the sole fan of its archrival may say that being singled out as such creates a “hostile work environment.”  Or, in a workplace full of fashionistas, the sole person who prefers casual wear may claim that the environment is “toxic” due to coworkers’ focus on fashion.  Have the sole fan of the archrival team and the casual wear fan been subject to “hostile” or “toxic” work environments?

From a legal point of view, the answer is no.

Under both California’s Fair Employment and Housing Act and federal anti-discrimination laws such as Title VII of the Civil Right Act of 1964, the Age Discrimination in Employment Act, and the Americans with Disabilities Act, actionable discrimination and harassment are contingent upon protected classifications.  Both California and federal law protect employees from discrimination and harassment based on age, race, color, national origin and/or ancestry, sex, religion, disability, genetic information, and veteran status.  (Notably, California offers broader protection than federal law, and includes additional protected classifications.)

However, neither California nor federal law confers protected classification status upon support for a specific sports team or preference for casual dress.  Likewise not protected – perhaps surprisingly – are socio-economic status, educational level, and income level.  Many are also taken aback to find that weight is not a protected classification under California or federal law.  Despite lively social media discussions regarding body positivity and the obstacles often faced by individuals as a result of their weight, only San Francisco (San Francisco Police Code section 3301) and Santa Cruz (Ordinance No. 2017-09) expressly prohibit weight discrimination.

To constitute actionable hostile work environment, harassment must be based upon an individual’s protected trait or traits, as defined under applicable law.  If it is not, such conduct does not create a “hostile work environment” in the legal sense.

That does not mean that employees may poke fun at others with impunity.  Discourteous, disrespectful, or rude language targeting a coworker for any reason may well expose an employee to discipline, including dismissal, under an agency’s professionalism and/or civility policy.  However, a “hostile work environment” – in a legal sense – exists only where one’s conduct targets another because of the other’s actual or perceived protected characteristic.

To ensure that employees have a thorough understanding of the laws governing unlawful discrimination, harassment, and retaliation, public agencies should provide all employees mandatory harassment training, and clearly communicate their policies governing conduct in the workplace.

 

In 2015, someone shot a police officer and a suspect was later arrested.  While off-duty, a SWAT sniper commented on a friend’s Facebook post which linked to an article about the shooting.  He wrote, “It’s a shame he didn’t have a few holes in him.”  An anonymous tip came in about the post, there was an internal investigation, and the officer was transferred out of SWAT and put back on patrol.  The department felt that his comment showed he had become “a little callous to killing.”

He filed a lawsuit alleging the department had retaliated against him for speech protected under the First Amendment.  On January 12, 2021, the Ninth Circuit Court of Appeals issued a ruling that will serve as the governing authority in California on public employees’ free speech rights.  See Moser v. Las Vegas Metropolitan Police Department (9th Cir., Jan. 12, 2021, No. 19-16511) 2021 WL 98249 (Moser).

The court in Moser began by explaining the applicable test the U.S. Supreme Court has developed to address public employee First Amendment claims against their employers.  Under that test, the plaintiff must show: (a) he spoke on a matter of public concern; (b) he spoke as a private citizen rather than a public employee; and (c) his speech was a substantial factor in his discipline.  If the employee makes this showing, the burden shifts to the employer to demonstrate that its legitimate administrative interests outweighed the employee’s First Amendment rights.  If the employer cannot meet its burden, then the First Amendment will protect the plaintiff’s speech.

Applying this test, the court in Moser found the employee met his burden because:

  1. The SWAT sniper’s comment addressed an issue of public concern, which means it related to any matter that is political, social or another concern to the community or is the subject of legitimate news interest;
  2. The SWAT sniper’s comments were made as a private citizen and not a public employee because he was at home, off-duty and used his personal Facebook account; and
  3. He was transferred out of SWAT because of his Facebook post.

The court then turned to the balancing test between the employer’s administrative interests and the employee’s First Amendment Rights.  Importantly, the court noted that even though the government generally cannot consider the content of the speech under the First Amendment, there is a narrow exception for speech by government employees.  When applying the balancing test, courts may consider the content of the speech to determine how much weight to give the employee’s First Amendment interests.

In Moser, the court held that it could not balance the employer’s administrative interests against the employee’s First Amendment rights because of two factual disputes.  First, it found there was a factual dispute over what the Facebook comment objectively meant.  The police department contended it advocated unlawful violence by law enforcement.  Under the department’s interpretation, the Facebook comment would not have needed the highest level of First Amendment protection.  However, the SWAT sniper contended he did not advocate unlawful violence, but instead expressed frustration at the perils police officers face.  Under his interpretation, his Facebook post would have needed the highest level of protection because it would relate to an important public policy issue.  A significant point to take away from this part of the ruling is that before disciplining employees based upon their speech, public entities must analyze potential ways the employee could claim his or her speech sought to address problems at work.  If it could be interpreted that way, the speech will be entitled to greater protection under the First Amendment.

After addressing the strength of the employee’s First Amendment rights, the court in Moser then considered the other side of the balancing test, which is the employer’s administrative interests.  The court found there was a factual dispute over whether the Facebook post would have caused disruption to the police department or exposed it to future legal liability.  It noted there was no media coverage, no evidence that anyone knew about the post other than the person who made the anonymous tip, and little chance the public would have seen it because the SWAT sniper deleted his Facebook comment.  A significant point to take away from this ruling is that before disciplining employees based on their speech, public entities should consider whether they can produce evidence that the speech has or will disrupt their workplace.

The police department has the option to file a petition for rehearing en banc (i.e., by a larger panel of the Ninth Circuit) to ask it to reach a difference decision, and can ask the U.S. Supreme Court to choose to hear the case and possibly reach a different result.  However, the ruling in Moser is now the law in California and courts will rely on it when issuing rulings related to public employees’ First Amendment rights.  With the rise in social media usage, public entities will increasingly be challenged with how to handle controversial online posts by their employees.  They should consider seeking legal advice when deciding whether to impose discipline.

 

 

At the beginning of the COVID-19 pandemic, many employers allowed some of their employees to work from home (i.e., “telecommute” or “telework”) in the interest of public health.  We are now entering our tenth month of the pandemic, and working from home has become “the new normal” for many employers and employees.  Now, as vaccines will become more readily available, there is hope that the pandemic will end soon.  In a post-pandemic world, employers will have to decide if and when to have employees return to the worksite or if they will allow employees to continue to work from home.  Indeed, some employers have already determined that working from home will continue.  For example, in October 2020, Twitter announced that working from home would be available even after the pandemic.

If an employer decides, however, that it is going to require employees to return to the worksite, it should be prepared for possible requests for accommodation to work from home.  Prior to the pandemic, the EEOC had issued guidance on whether working from home could be an accommodation.  You can find EEOC’s guidance here.

First, the employer must determine if there is a physical or mental condition that limits the employee’s ability to work in the workplace.  The EEOC writes that the employee “must explain what limitations from the disability make it difficult to do the job in the workplace.”  A person who is merely fearful of returning to the worksite likely will not qualify as a person with a disability.  On the other hand, if an employee has a medical reason that makes it difficult to perform their essential functions in the workplace, then that person may qualify as a person with a disability.

Second, assuming the employee can establish that he or she has qualifying limitations, the employer must evaluate whether telework can be provided as a reasonable accommodation.  In responding to the question of how to determine whether working from home is a possible accommodation, the EEOC writes:

Several factors should be considered in determining the feasibility of working at home, including the employer’s ability to supervise the employee adequately and whether any duties require use of certain equipment or tools that cannot be replicated at home.  Other critical considerations include whether there is a need for face-to-face interaction and coordination of work with other employees; whether in-person interaction with outside colleagues, clients, or customers is necessary; and whether the position in question requires the employee to have immediate access to documents or other information located only in the workplace.  An employer should not, however, deny a request to work at home as a reasonable accommodation solely because a job involves some contact and coordination with other employees.  Frequently, meetings can be conducted effectively by telephone and information can be exchanged quickly through e-mail.

Prior to the pandemic, many of these factors weighed against granting an accommodation to work from home for your particular agency.  Some factors will likely continue to weigh against teleworking, both pre- and post-pandemic, e.g., positions that require face-to-face interaction or require access to highly confidential documents and information.  In a post-pandemic world, however, your agency may need to re-analyze these factors to see if they still weigh against teleworking.  For example, the employer may now have an infrastructure that allows basic administrative tasks to be performed remotely, whereas they did not have that prior to the pandemic.

As with any accommodation request, these requests will be unique to each employer and employee.  If you receive an accommodation request, LCW attorneys are available to assist you and your agency with the request.

On January 8, the Department of Occupational and Safety (Cal/OSHA) updated its interpretive guidance concerning emergency COVID-19 regulations that took effect on November 30, 2020. The guidance reflects new information concerning employer obligations and employee entitlements under both Title 8 Sections 3205 and 3205.1, which, respectively, relate to the COVID-19 Prevention Program (CPP)[1] and workplace COVID-19 outbreaks[2].

While Cal/OSHA provides additional information on more than three dozen topics, the purpose of this special bulletin is to provide operational guidance on the more important of these topics,  including: (1) the scope of the regulation’s coverage as it pertains to certain employees; (2) employer testing obligations in the event of “close contact” exposures[3] and/or COVID-19 outbreaks; (3) clarification concerning the definition of an “exposed workplace” for purposes of establishing that a COVID-19 outbreak has occurred; and (4) employer requests to Cal/OSHA to waive the exclusion or quarantine requirements for certain employees.

In addition to describing the Cal/OSHA updates in this special bulletin, Liebert Cassidy Whitmore also updated our template CPP for consortium and non-consortium members and guide to reflect this information. Employers that purchased the template will be receiving the updated version. Other employers should consider purchasing the updated LCW template and guide in order to revise their own CPP documents.

Scope of Regulatory Coverage

Cal/OSHA clarifies the scope of coverage for its regulations, including as it relates to the following two (2) groups of employees: (1) employees who are or may be subject to a related regulation, Section 5199, which concerns Aerosol Transmissible Diseases (“ATDs”); and (2) employees who are vaccinated for COVID-19.

Employees Who May Perform “Services” Covered by Section 5199

Section 3205 expressly exempts from coverage “[e]mployees when covered by [Title 8] Section 5199”.[4] That regulation covers “health care facilities, services, or operations”, and also certain “services”, including those provided by some firefighters and police officers.[5]

Specifically, Section 5199 applies to “[p]aramedic and emergency medical services including these services when provided by firefighters and other emergency responders.”[6] Section 5199 also applies to “[p]olice services, provided during transport or detention of persons reasonably anticipated to be cases or suspected cases of aerosol transmissible diseases; and police services provided in conjunction with health care or public health operations.” Therefore, firefighters and police may be covered by Section 5199, and exempt from Section 3205, when those employees are actually performing the specific services described above.

While Cal/OSHA’s updated guidance discusses employees who work in facilities and operations covered by Section 5199, it omits reference to employees whose coverage depends on the services that the employee performs. The guidance provides that if an employee works in a “single workplace” or “facility or operation” “that is within the scope of section 5199”, the employee is covered by the requirements of Section 5199, and not Section 3205.[7] The guidance does not discuss “services” at all nor does it describe how employers of safety employees should approach or manage the two regulatory schemes to which firefighters and police officers may be subject depending on the services that they perform. Specifically, the guidance does not answer the question as to whether a safety employee who may occasionally perform the “services” that are within the scope of Section 5199, but do not work at a “facility or operation” covered by that regulation, is covered by Section 3205 or 5199 or both regulations.

As a result of the lack of guidance provided by Cal/OSHA on this subject, Liebert Cassidy Whitmore recommends that, unless the employee in question works at a “facility or operation” covered by Section 5199 or is actually performing one of the “services” expressly covered by that regulation, the employee’s employer should consider that such employee is covered by Section 3205.

Employees Who are Vaccinated Remain Subject to Regulatory Requirements

The Cal/OSHA guidance also provides that, for the time being at least, the scope of coverage for the regulations includes employees who have been vaccinated for COVID-19.[8] Cal/OSHA suggests that this guidance may change in the future, but that the regulatory requirements currently cover such employees and the employers of such employees. Liebert Cassidy Whitmore advises employers, particularly those with vaccinated employees, to monitor guidance from Cal/OSHA on this topic.

Testing Obligations in the Event of “Close Contact” Workplace Exposures and “COVID-19 Outbreaks”

In addition to issues related to the scope of coverage, Cal/OSHA also clarifies several points about an employer’s obligations regarding testing employees for COVID-19 in the event that there is a “close contact” exposure under Section 3205 or a “COVID-19 outbreak” under Section 3205.1.[9]

First, Cal/OSHA clarifies that there is no difference between the regulatory requirement to “offer testing” to employees who had a “close contact” COVID-19 exposure in the workplace[10] and the requirement to “provide COVID-19 testing” to all employees at the “exposed workplace” in the event of a COVID-19 outbreak[11]. This guidance clarifies confusion concerning whether the use of different verbiage entailed different obligations to employees under each circumstance.

Second, Cal/OSHA provides that the employer does not need to offer employees COVID-19 testing in or at their worksite following a “close contact” exposure or a COVID-19 outbreak, but can offer such testing at off-site locations. The construction of both Sections 3205 and 3205.1 was unclear on this point and contributed to confusion as to whether employers were required to provide testing to employees in or at the workplace where the exposure or potential exposure occurred or just to those employees who were in or at that workplace.[12] Cal/OSHA’s guidance clarifies that there is no obligation to provide the requisite testing at any specific location.

Relatedly, Cal/OSHA provides that, in order to discharge their obligations to provide “free testing” for employees under both Section 3205 and 3205.1, the employer may send such employees to an off-site testing location and during non-working hours, but must ensure that such employees “incur no costs for the testing.”[13] As a result, employers must provide such employees compensation for their travel time and the costs incurred for such travel as well as pay for the time actually being tested, if during non-working hours.[14]

While these clarifications are consistent with Liebert Cassidy Whitmore’s prior interpretations of the regulation and advice provided to clients, we reiterate our advice to employers to do the following: (1) offer testing to all employees who had “close contact” exposure to someone with COVID-19 while at work or who were at the “exposed workplace” during a COVID-19 outbreak; (2) compensate employee for the testing either by providing such testing during the employee’s regular working hours or by supplementing the employee’s pay for the time spent being tested during non-working hours; and (3) either provide employee testing at the employer’s worksite or compensate employees for costs incurred by employees traveling to and from the off-site testing location.

While Cal/OSHA provided some useful information concerning employers’ testing obligations, the guidance did not address whether an employer may permissibly direct an employee to be tested by the employee’s health care provider if the employer reimburses the employee for the health insurance costs, if any, charged to the employee for such testing. This legal issue is presently unsettled. Until Cal/OSHA answers this question, employers should recognize that there are risks associated with requiring that employees incur expenses associated with their actual testing, even if the employer reimburses such expenses.

Clarification as to What Constitutes an “Exposed Workplace” for Purposes of Establishing the Existence of a COVID-19 Outbreak and Related Employer Obligations

Cal/OSHA provides guidance concerning the conditions necessary for the establishment of a COVID-19 outbreak under Section 3205.1.

Cal/OSHA provided that, in order to establish a COVID-19 outbreak and trigger the resulting regulatory obligations under Section 3205.1, the “exposed workplace” is not an entire workplace or building, but rather “only the areas of the [workplace or] building where the COVID-19 were present,” including a specific “work location, working area, or common are used or accessed by a COVID-19 case.”[15] This interpretive guidance narrows the scope of the physical area in which three (3) or more COVID-19 cases must be present in order for there to be an “outbreak.”

Cal/OSHA further clarifies that it “does not expect employers to treat areas where masked workers momentarily pass through the same space without interacting or congregating as an ‘exposed workplace,’ so they may focus on locations where transmission is more likely.”[16] Finally, Cal/OSHA indicates that separate non-overlapping shifts who work at the same location may each constitute a “separate ‘exposed workplace.’”[17]

Taken together, Cal/OSHA’s interpretations allow for an employer to disaggregate the specific “workplaces” that may comprise a single “worksite”, which may significantly reduce the likelihood of COVID-19 outbreaks under the regulation. As a result, Liebert Cassidy Whitmore recommends that employers subdivide large worksites into smaller workplaces. Further, in the event that there are three (3) or more COVID-19 cases at a worksite, we recommend that the employer identify whether there were a sufficient number of such COVID-19 cases in any one of the specifically identified workplaces necessary in order for the COVID-19 cases to constitute a COVID-19 outbreak at such workplace. Relatedly, Cal/OSHA states that it will consider an employer’s good faith effort to comply with the regulations before issuing any citations or monetary penalties.[18]

Request for Cal/OSHA Waiver of the Regulatory Exclusion/Quarantine Requirement

Cal/OSHA provides information regarding how and under what circumstances an employer may request that Cal/OSHA waive the requirement that employees be excluded from employer worksites and facilities following a “close contact” exposure or COVID-19 diagnosis.[19] The underlying regulation provided no information about how to request such a waiver from Cal/OSHA.[20]

Cal/OSHA clarifies that such requests should only be made if the absence of such employee from the employer’s worksite would cause a staffing shortage that would have an “adverse on a community’s health and safety” and pose an undue risk to the community’s health and safety as a result.[21] The guidance makes clear that the type of operations that may qualify for waiver are “narrower than the definition of ‘critical infrastructure’” and that Cal/OSHA will not provide waivers to employers in anticipation of a future workplace exposure or outbreak, but only if such exposure or outbreak has occurred.[22]

While Cal/OSHA does not discuss guidance provided the California Department of Public Health (“CDPH”) the quarantines following “close contact” exposure, Liebert Cassidy Whitmore interprets the Cal/OSHA waiver as separate and distinct from the expedited return to work provided to certain employees under the CDPH framework. While this question is untested and therefore unsettled, the firm interprets Cal/OSHA guidance as potentially authorizing the immediate return to work for individuals following a “close contact” exposure or COVID-19 diagnosis under the emergency circumstances described in the regulation and associated guidance.

The Cal/OSHA guidance provides for how an employer may request a waiver. An employer should submit the request to rs@dir.ca.gov, but that in the event of an emergency, an employer may request a provisional waiver by contacting the local Cal/OSHA office while the employer prepares the written waiver request. The written waiver request should provide the following:

  1. Employer name and business or service;
  2. Employer point-of-contact name, address, email and phone number;
  3. Statement that there are no local or state health officer orders for isolation or quarantine of the excluded employees;
  4. Statement describing the way(s) in which excluding the exposed or COVID-19 positive employees from the workplace impacts the employer’s operation in a way that creates an undue risk to the community’s health and safety;
  5. Number of employees required to be quarantined under the Cal/OSHA regulation, and whether each was exposed to COVID-19 or tested positive for COVID-19; and
  6. The employer’s control measures to prevent transmission of COVID-19 in the workplace if the employee(s) return or continue to work in the workplace, including the prevention of further exposures. These measures may include, but are not limited to, preventative steps such as isolating the returned employee(s) at the workplace and requiring that other employees use respiratory protection in the workplace.

Liebert Cassidy Whitmore recommends that, in advance of a potential workplace exposure or COVID-19 outbreak that would jeopardize the employer’s ability to continue to provide essential services, an employer identify portions of its operations and job classifications, in particular, that are necessary to provide for the health and safety of the community. Further, we recommend that employers prepare a template waiver request, or use the one developed by our firm and available to Liebert Library subscribers, in order to expedite a written waiver request to Cal/OSHA in the event of an incident that would compromise the employer’s ability to adequately provide for the community’s health and safety.

Conclusion

While there remain a number of unanswered questions concerning the Cal/OSHA regulations regarding COVID-19, the January update provides some important clarifications with which employers should be familiar. This information will help employers ensure compliance with the regulations and minimize potential legal exposure due to non-compliance.

Liebert Cassidy Whitmore attorneys are available to assist public agencies that have any questions about this guidance.

[1] See 8 C.C.R § 3205.

[2] 8 C.C.R § 3205.1.

[3] “Close contact” exposure has the same definition as the term “COVID-19 exposure” as used in the regulation. (See 8 C.C.R. § 3205(b)(3).)

[4] 8 C.C.R § 3205(a)(1)(C)

[5] 8 C.C.R § 5199(a)(1)(A)(8), (a)(1)(C).

[6] 8 C.C.R § 5199(a)(1)(A)(8).

[7] See Cal/OSHA “COVID-19 Emergency Temporary Standards Frequently Asked Questions”, Nos. 6 and 7, https://dir.ca.gov/dosh/coronavirus/COVID19FAQs.html#footnote (Last updated on January 8, 2021.)

[8] See Cal/OSHA “COVID-19 Emergency Temporary Standards Frequently Asked Questions”, No. 24, https://dir.ca.gov/dosh/coronavirus/COVID19FAQs.html#footnote (Last updated on January 8, 2021.)

[9] See Cal/OSHA “COVID-19 Emergency Temporary Standards Frequently Asked Questions”, Nos. 28-30, https://dir.ca.gov/dosh/coronavirus/COVID19FAQs.html#footnote (Last updated on January 8, 2021.)

[10] 8 C.C.R. § 3205(c)(3)(B)(4).

[11] 8 C.C.R. § 3205.1(b)1).

[12] See 8 C.C.R. §§ 3205(c)(3)(B)(4) and 3205.1(b)1).

[13] See Cal/OSHA “COVID-19 Emergency Temporary Standards Frequently Asked Questions”, No. 30, https://dir.ca.gov/dosh/coronavirus/COVID19FAQs.html#footnote (Last updated on January 8, 2021.)

[14] The underlying regulations provides that the testing must be offered or provided “during their working hours” and “during employees’ working hours.”

[15] See Cal/OSHA “COVID-19 Emergency Temporary Standards Frequently Asked Questions”, Nos. 38-39, 41-42, https://dir.ca.gov/dosh/coronavirus/COVID19FAQs.html#footnote (Last updated on January 8, 2021.); See also 8 C.C.R. § 3205(b)(7).

[16] See Cal/OSHA “COVID-19 Emergency Temporary Standards Frequently Asked Questions”, No. 38, https://dir.ca.gov/dosh/coronavirus/COVID19FAQs.html#footnote (Last updated on January 8, 2021.)

[17] See Cal/OSHA “COVID-19 Emergency Temporary Standards Frequently Asked Questions”, No. 44, https://dir.ca.gov/dosh/coronavirus/COVID19FAQs.html#footnote (Last updated on January 8, 2021.)

[18] See Cal/OSHA “COVID-19 Emergency Temporary Standards Frequently Asked Questions”, No. 10, https://dir.ca.gov/dosh/coronavirus/COVID19FAQs.html#footnote (Last updated on January 8, 2021.)

[19] See Cal/OSHA “COVID-19 Emergency Temporary Standards Frequently Asked Questions”, Nos. 61-62, https://dir.ca.gov/dosh/coronavirus/COVID19FAQs.html#footnote (Last updated on January 8, 2021.)

[20] 8 C.C.R. § 3205(c)(11)(E).

[21] See Cal/OSHA “COVID-19 Emergency Temporary Standards Frequently Asked Questions”, No. 61, https://dir.ca.gov/dosh/coronavirus/COVID19FAQs.html#footnote (Last updated on January 8, 2021.)

[22] Id.

We are excited to continue our video series – Tips from the Table. In these videos, members of LCW’s Labor Relations and Collective Bargaining practice group will provide various tips that can be implemented at your bargaining tables. We hope that you will find these clips informative and helpful in your negotiations.

 

On January 7, 2021, the United States Department of Labor (DOL) published a final rule establishing new guidance on classifying individuals as independent contractors under the Fair Labor Standards Act (FLSA).  The new guidance is set forth in Title 29 of the Code of Federal Regulations at Part 795.100 et seq. and is available online here.  The effective date of the final rule is March 8, 2021.

For California employers, the new DOL rule has little to no immediate effect due to established Ninth Circuit law on evaluating independent contractor status under the FLSA.  In addition, the California legislature adopted a new test for evaluating independent contractor status under California law.  The California ABC test was discussed in a previous LCW bulletin available online here.  In addition, the California common law test for independent contractor status still applies to certain categories of individuals and is used by CalPERS.  Nevertheless, it is possible courts will incorporate the new DOL guidance in evaluating independent contractor status in a way that will affect California public agencies.  Thus, we recommend employers familiarize themselves with the test and its concepts.

What is an Independent Contractor?

In the context of employment law, an “independent contractor” is an individual or entity that performs services for a potential employer, but is not an employee.  The significance of the distinction between employee and independent contractor is that an independent contractor is not covered by many of the laws governing employers and employees, such as the FLSA.  In this way, a person performing services as an independent contractor need not be paid minimum wage or overtime, among other statutory benefits that attach to employee status.

A simple example of an independent contractor (under both California and federal law) would be an individual like an electrician, hired to fix a one-time, specialized problem for a fee.  The independent contractor electrician would have multiple clients, be in business for themselves, use their own tools, decline work at their option, and generally would have complete control over the work the electrician was hired to perform.  In contrast, most employees must perform services for their employers at prescribed times and places; their work is directed and overseen by managers; and their compensation is regulated by law.

There are, however, many grey areas between the classic independent contractor and the classic employee.  It is within this grey area where employing entities may misclassify an employee as an independent contractor.  Misclassification may subject an employer to back minimum wages and overtime, liquidated damages, and other penalties.  In addition, for California public agencies, misclassification may give rise to significant liability under applicable pension systems.

The New DOL Two-Factor Test for Independent Contractor Status

Under the new DOL test for independent contractor status, an individual is an independent contractor if the individual is, “as a matter of economic reality,” in business for themselves.  Whereas an employee is economically dependent on the employer, an independent contractor is not.  To determine economic dependence, the DOL will look at two “core” economic reality factors, which the DOL believes are the most probative of economic dependence: (i) The nature and degree of control over the work, and (ii) The individual’s opportunity for profit or loss.  Other, non-core factors the DOL will look at are the amount of skill required for the work, the degree of permanence of the working relationship, and whether the work is part of an integrated unit of production.  Additional factors may also be relevant if they indicate the individual is in business for themselves, as opposed to being economically dependent on the potential employer.

Interestingly, the new DOL test’s factors are similar to the six factors articulated by the Ninth Circuit in the case, Real v. Driscoll Strawberry Associates, which established the still-governing law in California on evaluating independent contractor status under the FLSA.  Where the new DOL rule departs from the Ninth Circuit is in its emphasis on the nature and degree of control over the work and the individual’s opportunity for profit or loss.  It remains to be seen whether the Ninth Circuit or other courts will adopt the DOL’s designation of these two factors as “core,” or will otherwise incorporate the new DOL rule.

Four Tests for Independent Contractor Status

With the issuance of the DOL’s final rule, California public employers are faced with four overlapping, yet distinct tests for independent contractor status: the DOL’s new federal two-factor standard, the Ninth Circuit’s six-factor standard under Driscoll, the California three-factor “ABC test,” and the California common-law multi-factor standard under S.G. Borello & Sons, Inc. v. Department of Industrial Relations.  The below chart sets forth the basic elements of each test.  As you can see, the degree of control a potential employer exerts over an individual is a factor in each test.  Under the current Ninth Circuit test, employers have more flexibility in evaluating independent contractor status.  In contrast, the California ABC test is more rigid and significantly limits independent contractor status.  Employers that adhere to the California ABC test will likely be in compliance with the common law and federal tests.  Public agency employers are encouraged to work with counsel to determine which test – or combination of tests – to use in evaluating independent contractor status.

FLSA

(Ninth Circuit)

FLSA

(DOL)

California Law

(CA Labor Code)

California Law

(Common Law / CalPERS)

“Driscoll” 29 C.F.R. 795.100, et seq. Cal. Lab. Code 2775, et seq.

“Borello”

 

Six Factors:

·   Nature and degree of control

·   Opportunity for profit/loss

·   Investment in facilities/equipment/employment of helpers

·   Special skill required

·   Permanency of working relationship

·   Services rendered are integral part of hiring entity’s business

Two-Factor Test:

(i)      Nature and degree of control

(ii)    Opportunity for profit/loss.

Other Factors:

·         Skill required

·         Degree of permanence of working relationship,

·         work part of an integrated unit of production

ABC Test:

A)      Free from control and direction of hiring entity

B)      Work performed outside usual course of hiring entity’s business

C)      Person customarily engaged in an independently established trade, occupation, or business

Control of Work Test

·     Who controls the work

·      Secondary factors: engaged in district occupation /business; work done by specialist without supervision; particular skill required; who supplies tools, place of work; length of engagement; method of payment; intent of the parties.

Applies to Public Agencies Applies to Public Agencies May Apply to Public Agencies Used by CalPERS

 

On January 6, 2021, the California Department of Public Health (CDPH) updated its November 13, 2020 travel advisory concerning non-essential interstate travel and the quarantine period for individuals who engage in such travel.

The new CDPH guidance makes two important changes to its prior travel advisory including: (1) reducing the recommended self-quarantine period from 14 to 10 days for individuals who travel to California from other states and countries; and (2) expanding the scope of its recommendation against non-essential international and interstate to also include certain intrastate travel.

CDPH’s reduction of the recommended quarantine period for individuals who engage in interstate and international travel is consistent with December 2 guidance provided by the Centers for Disease Control and Prevention (CDC) on the same subject. In that guidance, the CDC recommends that travelers reduce non-essential activities for 10 days following travel, consider getting tested for COVID-19 3-5 days after the trip and observe other COVID-19-related health and safety measures.

The CDPH guidance also expands the advisory against non-essential international and intrastate travel to include intrastate travel of more than 120 miles from the individual’s home or place of residence. Many local public health authorities now require that travelers from outside their county or region observe mandatory self-quarantines upon their arrival in the jurisdiction.

While the new CDPH guidance remains advisory in nature and therefore imposes no new requirements on employers concerning employee travel, employers should be familiar with the changes described above. Furthermore, employers should remember to follow all applicable local health orders, including those that may restrict non-essential international, interstate or intrastate travel or that require a mandatory quarantine period for individuals who engage in such travel.

If you have questions about this travel advisory and how it may affect your operations, LCW attorneys are available to answer your questions.

 

 

In March 2018, a Philadelphia Inquirer reporter alerted the City’s Department of Human Services (“Department”) that two of the foster care agencies with which it contracts – including Catholic Social Services (“CSS”) – refused to work with same-sex foster parents.  The Department promptly conducted an investigation and, upon confirming that CSS refused to work with same-sex foster parents in violation of the City’s anti-discrimination laws, stopped referring foster children to CSS.  CSS then sued under the free exercise, free speech, and establishment clauses of the U.S. Constitution’s First Amendment, seeking an order requiring the City to renew its annual contract.  The United States District Court for the Eastern District of Pennsylvania denied the requested temporary restraining order and preliminary injunction, and in a case titled Fulton v. City of Philadelphia (“Fulton”), the Third Circuit affirmed.

Relying on 30-year precedent set forth in Employment Division, Department of Human Resources of Oregon v. Smith (“Smith”), the Third Circuit held in Fulton that the City did not treat CSS differently because of its religious beliefs.  Rather, the City acted to enforce a facially neutral and generally applicable non-discrimination policy which, under Smith, it is permitted to do.  And while certain comments may be found to suggest hostility toward religion and thereby belie arguments pertaining to neutrality and general applicability, the Third Circuit also cautioned that “[i]f all comment on religiously motivated conduct by those enforcing neutral, generally applicable laws against discrimination is construed as ill will against the religious belief itself, then Smith is a dead letter, and the nation’s civil rights laws might be as well.”  (Emphasis added.)  The Third Circuit’s fear may soon become reality.

CSS sought review of the Third Circuit’s decision, and the United States Supreme Court granted certiorari on January 24, 2020 and heard oral argument on November 4, 2020.  The Supreme Court’s ruling in Fulton could spell the end of Smith.

During oral argument, newly-appointed Justice Amy Coney Barrett pointed out that CSS urged in its briefing that Smith should be overruled.  In response, CSS argued that Smith “has caused negative results” and “is a bad fit” in the context of the Court’s free exercise jurisprudence.  CSS urged that the rational basis standard set forth in Smith be replaced with a strict scrutiny standard.  So what would be the practical effect of CSS prevailing?

Simply put, it could herald a new free exercise jurisprudence era.  Under Smith, if a facially neutral and generally applicable public employer rule or policy incidentally burdens an employee’s free exercise of his or her religion, the rule or policy survives a legal challenge under the First Amendment’s free exercise clause if it is rationally related (i.e., has a logical connection) to a legitimate purpose.  However if, as CSS urges, the Court adopts a strict scrutiny test, the same rule or policy would survive a legal challenge if, and only if, it is the least restrictive means to accomplish a compelling interest – a much higher standard.  Public employers may then need to evaluate their policies to determine whether they need to be revised to reflect the least restrictive means to accomplish a compelling interest.

The Supreme Court has not yet ruled on Fulton.  In its opinion, the Court may choose to affirm Smith or may determine that Smith is inapplicable to the facts before it and, on that basis, not address it at all.  (It should be noted, however, that the Fair Employment and Housing Act (“FEHA”) and Title VII of the Civil Rights Act of 1964 (“Title VII”) both prohibit religious discrimination, and the analysis of FEHA and Title VII discrimination claims is different from the free exercise claims at issue in Fulton and Smith.)

On December 30, 2020, Governor Newsom issued a new framework for schools so that school districts can reopen or continue operating safely during the COVID-19 pandemic.  The Governor’s “Safe Schools for All Plan”, is based on increasing scientific evidence that the correct precautions can stop the spread of COVID-19 in schools. The Governor and the Department of Public Health (“CDPH”) believe that it is important for student learning, as well as children’s mental health and social emotional needs for students to resume in person instruction.[1]

The Plan focuses on student and staff safety by bringing back the youngest students (TK-2)[2] and those disproportionately affected by the pandemic first. Qualifying school districts will phase-in other grades throughout the spring, as conditions allow.

California’s Safe Schools for All Plan relies on “four pillars”:

1)    Funding. The state has proposed a $2 billion budget for the safe reopening of public schools beginning in February. These funds will provide approximately $450 per student to school districts offering in-person instruction and will be weighted for districts serving students from low-income families, English learners and foster youth.

2)    Safety & Mitigation. To ensure health and safety in the classroom, the Plan focuses on the implementation of safety measures:

  • Testing. Frequent COVID-19 testing for all school staff and students, including weekly testing at schools in communities with high rates of transmission. For example, any public school can be on-boarded to the state-owned Valencia Branch Lab for PCR tests at one-third the market rate and the State will establish a hotline to help schools implement testing.
  • PPE. All staff and students in schools will be required to wear masks. The Plan recommends surgical masks for school staff, and the state will distribute millions of surgical masks to schools at no cost. The state has also enabled schools to leverage state-negotiated master contracts for PPE to reduce costs and streamline supply chains.
  • Contact Tracing. Schools will continue to be on-boarded onto the School Portal for Outbreak Tracking (SPOT) to improve collaboration between school and health officials, and members of the state contact-tracing workforce will be deployed to improve communication with schools.
  • Vaccinations. School staff will receive priority in the distribution of vaccines through the spring of 2021.

3)    Oversight & Assistance. The Safe Schools for All Team, a cross-agency team composed of dedicated staff from CDPH, Cal/OSHA, and educational agencies will provide support to help schools develop and implement their COVID-19 Safety Plans. These supports include school visits and walk-throughs as warranted, webinars and training materials, and ongoing technical assistance.

4)    Transparency & Accountability. A state dashboard will enable all Californians to see their school’s reopening status, level of available funding, and data on in-school transmissions. Additionally, there will be a web-based “hotline” for school staff and parents to report concerns to the Safe Schools for All Team. The Team will have the ability to provide escalating levels of intervention, starting with technical assistance and ending with legal enforcement.

The Governor’s plan requires legislative approval. Liebert Cassidy Whitmore will continue to monitor the state’s efforts to reopen schools and other changes regarding COVID-19 legal requirements and safety measures.

[1] Distance learning will still be available for parents and students who choose this option and for students with underlying conditions.

[2] CDPH asserts that this approach recognizes that younger children are at a lower risk of contracting and transmitting COVID-19 when proper safety measures are in place.

During these unprecedented times, it is likely that employees may be utilizing various forms of protected leave under the Family Medical Leave Act (FMLA) and California Family Rights Act (CFRA).  Some employees may be tempted to work remotely during their leave, perhaps to catch up, to stay ahead, or to offset the amount of time they are drawing down on their paid leave accruals or on an unpaid leave status.  Supervisors may also feel inclined to communicate with employees on leave to keep them updated on work-related assignments, news, and events or to give them time-sensitive assignments.  Here are some general rules and guidance for employers to be aware of regarding communications with employees on a protected leave.

General Rules Regarding Interference

Both the FMLA and CFRA prohibit an employer from interfering with, restraining, or denying an employee’s right to use leave under either statute.  For example, if an employee is on FMLA or CFRA leave, the employer may not require the employee to answer e-mails or phone calls or attend meetings.  However, depending on the reason for leave, an employee may still be able to perform some work for the employer.  The employer should obtain the proper medical certification and document the arrangement and any parameters for working based on the employee’s medical note (which should only contain restrictions and/or potential accommodations that would allow the employee to perform the essential functions of his/her position).  On the other hand, if the medical certification requires the employee to be completely off work, the employer should adhere to that requirement.  In this situation, the employer should not allow, encourage, or permit the employee to engage in work and should limit communication to the employee, other than for purposes of administering the employee’s leave.

If an employee has remote access to his/her work e-mail account, an employer can still send and copy e-mails to that employee, but the employer should not expect that the employee actually reads and keeps up with all the work-related correspondence while on leave.  The employer should communicate to the employee that the employee is not expected to reply to any work-related e-mails while on leave.  Otherwise, the employer potentially risks interfering with the employee’s protected leave rights.  Of course, if an employee does not have access to his/her e-mail, the employer can send e-mails to him/her and simply expect a response upon the employee’s return.  There are limited exceptions and circumstances where an employer may make brief, reasonable contact limited to administrative inquiries about information such as the location of documents, the name of a password, quick status updates of matters, and passing along of institutional knowledge to new staff without committing interference.  (See, for example, Reilly v. Revlon, Inc. (S.D.N.Y. 2009) 620 F.Supp.2d 524, 537, holding that “[f]ielding occasional calls about one’s job while on leave is a professional courtesy that does not abrogate or interfere with the exercise of an employee’s FMLA rights.”)  Keep in mind, these are general exceptions.  Employers should only rely on them when necessary and with caution.  The particular circumstances of each situation will dictate what is permissible and practical.  Additionally, non-exempt employees on leave will need to be paid for all time spent conducting work on the employer’s behalf (even work they voluntarily perform).  This is not an issue, however, while the employee is utilizing paid leave although employers may have to designate the leave as work time instead of deducting the time from the employee’s paid leave accruals.

Intermittent and Reduced Leave Options

Given the rise in remote work arrangements, and the ease in which employees can work remotely right now, there may be situations where an employee can perform limited levels of work, while remaining on FMLA/CFRA leave.  Under both statutes, intermittent leave and reduced leave schedules could be viable options depending on the leave-qualifying reason(s).  For example, the employee may need such leave to attend planned medical treatments, for doctor visits, for recovery time, or for other covered purposes needed for the employee’s serious health condition or that of a covered family member.  To utilize intermittent and reduced leave schedules, there must be a documented medical need for leave, and the employer must be able to reasonably accommodate the intermittent leave or reduced leave schedule.  Employees needing such leave must also make a reasonable effort to schedule their leave so as not to disrupt the employer’s operations.  For example, an employee who is on an intermittent leave for scheduled medical treatments over a period of time should attempt to schedule their leave during a period when the employer can substitute other employees to fill the shift, or on days where designated meetings or events will not take place.  Also, if an employee takes leave intermittently or on a reduced leave schedule, only the amount of leave actually taken may be counted towards the 12 weeks of leave (or 26 weeks of military caregiver leave) to which an employee is entitled.

Additionally, there are special considerations for pregnant employees and parents bonding with a newborn, foster-placed, or adopted child.  Under the FMLA, for example, an employee may take leave to bond with the child within 12 months of the qualifying event, and such time must be a continuous block of leave, unless the employer agrees to allow intermittent leave.  The employee is entitled to take intermittent leave in two-week increments.  However, employers must grant a request for leave of less than two weeks’ duration on any two occasions and may grant requests for additional occasions of short-duration leave.  (Cal. Code Regs., tit. 2, § 11090, subd. (d).)  In addition, pregnant women are eligible for up to for four months of Pregnancy Disability Leave, which may be taken intermittently.  (Cal. Code Regs., tit. 2, § 11035.)

If an employer does approve an intermittent leave or a reduced leave schedule request, it should take steps and precautions to ensure the employee follows appropriate protocols, including: confirming and tracking the number of hours and days the employee is scheduled to work (especially for non-exempt employees); setting the duration of the intermittent and reduced leave schedule (consistent with medical certification); assessing whether the employee’s duties are consistent with such medical certification; and an ongoing management of the employee’s leave to ensure the intermittent and reduced leave schedule does not inadvertently become a permanent accommodation under the ADA and/or FEHA once the eligible leave entitlement period ends.

Conclusion

In summary, an employer should not assign any work to employees on FMLA/CFRA leave in order to avoid interference claims.  Necessary communications about work assignments should be brief, done sparingly, and not require the employee to travel to the workplace.  The employer may also send e-mails to employees, but should not expect employees on leave with remote access to respond prior to returning.  Intermittent or reduced leave schedules may be options for allowing the employee to continue to work and schedule their leave as reasonably as possible so as not to disrupt the employer’s operations.  In these situations, the employer should document the parameters of such assignments and ensure the employee understands the restrictions.  Non-exempt employees should also be paid for all work time to avoid wage and hour issues.