Sexual Harassment Claims Exempt from Forced Arbitration
The message is clear: Workers who bring sexual harassment claims against their employers cannot be forced to arbitrate those claims and are free to bring them in court where they belong.
New Attorneys Fees Provision Should Apply Retroactively to Pending Whistleblower Cases
California’s whistleblower law, Labor Code section 1102.5, helps discourage employers from retaliating against employees who report unlawful activity in the workplace. It’s an important law because it safeguards other rights and privileges afforded to employees.
Last fall, Governor Gavin Newsom signed into law AB 1947, an amendment to Section 1102.5. The new Labor Code Section 1102.5(j) authorizes a court to award reasonable attorneys fees to a plaintiff who brings a successful action under Section 1102.5. This is an important addition to the law because it will help future whistleblowers find legal representation for their claims.
However, practitioners who filed whistleblower claims before Section 1102.5(j) became effective on January 1, 2021 might find themselves wondering if the new attorneys fee provision applies retroactively to their pending claims…
Retroactivity of Statutes, Generally
“As a general rule, statutes do not operate retroactively unless the Legislature plainly intended them to do so.” (Scott v. City of San Diego (2019) 38 Cal.App.5th 228, 236.) However, a statute that merely clarifies, rather than changes, existing law is properly applied to transactions predating its enactment. This is because “it is merely a statement of what the law has always been.” (Id.)
In determining whether a statute “clarifies” or “changes” existing law, courts consider the following factors: (1) What actions courts have previously taken in interpreting the law; (2) Whether the law was interpreted by the high or intermediate courts (once the Supreme Court “finally and definitively” interprets a statute, an amendment can’t merely clarify existing law; it necessarily changes it); (3) the Legislature’s intent as illustrated by legislative history; and (4) how quickly the Legislature acts.
As applied to AB 1947, these factors weigh against finding that Labor Code 1102.5(j) should apply retroactively. This is because the legislative history clearly shows that the purpose of AB 1947 was to change existing law:
Under existing law, workers who prevail in lawsuits alleging that their employer violated these protections … will still be stuck paying their own attorneys’ fees, unless they can find another way to convince the judge to make the employer pay those fees. This bill would alter that dynamic by authorizing courts to award reasonable attorneys’ fees to a worker that prevails on a claim of retaliation for blowing the whistle on legal misconduct at their workplace.
(California Committee Report, 2019 California Assembly Bill No. 1947, California 2019-2020 Regular Session.)
One might assume, then, that practitioners with pending whistleblower actions are flat out of luck when it comes to recovering fees for a successful claim. However, despair not…
Attorneys Fees Provisions as a Special Category
California courts treat fee statutes as a special category within the prospective/retrospective application doctrine. (See USS-Posco Industries v. Case (2016) 244 Cal.App.4th 197, 221 (“In sum, the California Supreme Court and many, many Courts of Appeal have treated legislation affecting the recovery of costs, including attorney fees, as addressing a “procedural” matter that is “prospective” in character and thus not at odds with the general presumption against retroactivity.”).)
Under this line of cases, fee statutes are procedural rules that apply to actions pending at the time of enactment.
Thus, a plaintiff who brought a whistleblower action prior to January 1, 2021 should still be awarded attorneys fees pursuant to Section 1102.5(j), so long as the case was still pending on that enactment date.
Takeaway
Although it is too early to know how courts will apply 1102.5 (j), there is a strong legal argument to be made that its attorney fee provision should apply retroactively to cases filed prior to its effective date that are still pending.
This is a good thing for California workers since, as the Legislature noted in its committee reports, it will help a greater number of whistleblowing employees find legal representation. Section 1102.5(j) should also, therefore, aid enforcement of California’s labor laws and support justice in the workplace.
Truck Drivers Lose California Meal and Rest Breaks under Federal Court Ruling
Our country’s economy is built on the backs of truck drivers, whose demanding trips keep them on the road and away from their families while allowing Americans to receive goods from across the world in a matter of days. In spite of this service they provide, truck drivers engaged in interstate commerce do not enjoy all of the rights and protections afforded to other workers. For instance, truck drivers are generally not entitled to overtime. And after a recent decision from the Ninth Circuit, California truck drivers will now also be denied the meal and rest periods guaranteed to other employees under California law.
Meal and Rest Breaks: Federal Law v. California Law
In 2011, the Federal Motor Carrier Safety Administration (“FMCSA”) revised its federal hours-of-service regulations to require most drivers of property-carrying commercial motor vehicles working more than eight hours to take one 30-minute break during the first eight hours of a shift. Drivers had flexibility, though, in determining when that break would occur.
These federal regulations were far less generous to drivers than California law, which provides for multiple meal and rest periods each shift, and which penalizes employers who fail to provide these shifts to their employees.
California’s Wage Order 9-2001, which applies to “all persons employed in the transportation industry,” guarantees employees working than five hours a day a “meal period of not less than 30 minutes.” Employees are entitled to a second meal break of not less than 30 minutes when working more than 10 hours in a day.
Wage Order 9-2001 also guarantees California transportation industry employees to 10-minute rest breaks for every four hours worked throughout the day. “[I]nsofar as practicable [these breaks] shall be in the middle of each work period.”
Finally, employers who fail to provide a meal or rest break must pay the employee one additional hour of pay at the employee’s regular rate of compensation for each day the meal or rest period is not provided.
International Brotherhood of Teamsters, Local 2785 v FMCSA
In 2018, at the behest of trucking industry groups, the FMCSA considered whether California’s meal and rest break laws were preempted by the FMCSA’s federal hours-of-service regulations. The FMCSA had previously determined in 2008 that they were not.
This time, however, the agency concluded that federal law preempted California’s meal and rest break laws. The FMCSA determined that because the California rules generally required employers to grant commercial truck drivers more breaks, at greater frequency, they were more stringent than federal law and “caused an unreasonable burden on interstate commerce.” The California Labor Commissioner challenged this determination.
On January 15, 2021, the Ninth Circuit upheld the FMCSA’s determination that California’s meal and rest break laws were preempted by the federal hours-of-service regulations. International Brotherhood of Teamsters, Local 2785 v. Federal Motor Carrier Safety Administration, — F.3d —- , 2021 WL 139728 (9th Cir. 2021).
The Ninth Circuit determined the FMCSA had express authority from Congress to make preemption determinations and that its decision was not arbitrary and capricious. The Court pointed to a factual record that showed that the California rules negatively impacted the efficient operation of interstate logistics and resulted in lost productivity.
Takeaway
As a result of the Ninth Circuit’s decision in International Brotherhood of Teamsters, Local 2785, truck drivers are unable to enjoy the same meal and rest break protections that California law affords to other employees.
This is a blow to truck drivers everywhere, since, as the Ninth Circuit noted, 50% of the nation’s total container-cargo volume enter this country through California’s three major ports. However, drivers should keep on eye on the FMCSA during the Biden administration, as it’s possible the agency may choose to revisit its decision on California meal and rest breaks.
COVID-19 FAQ
The COVID-19 crisis has caused tremendous hardship for California’s workers. As businesses shutter or reduce their services and operations, employees face layoffs, heightened health risks in the workplace, and great uncertainty about their futures.
Hunter Pyle Law has compiled the FAQ below to help you understand your rights in the workplace during the COVID-19 era. We will continue to revise this FAQ and add additional articles to the firm’s blog as we receive further questions from workers.
If you believe your rights may have been violated, please do not hesitate to contact our office for an interview at (510) 444-4400 or inquire@hunterpylelaw.com.
We are dedicated to protecting the rights of all employees.
What are your rights as an employee during COVID-19?
You have the right to a “safe and healthful workplace.”
California law guarantees all employees the right to “employment and a place of employment that is safe and healthful for the employees therein.” (Cal. Labor Code section 6400.) From this right flow several others, discussed below.
You have the right to refuse to work due to unsafe conditions.
Employers may not terminate or lay off workers who refuse to work because of unsafe conditions. For instance, the California Department of Health has issued guidance that employers must require all employees to wear face coverings in the workplace. Additionally, medical professionals have widely recognized that wearing a face covering is a simple yet important step for mitigating the risk of COVID-19. Accordingly, if your employer failed to require your co-workers to wear face coverings, endangering your health and safety, your employer could not lawfully terminate you for refusing to work until your co-workers wore face coverings.
More information about your right to refuse to work due to unsafe conditions can be found here [hyperlink to “Can They Fire Me for Complaining About Coronavirus? Your Right to a Safe Workplace in California”: https://live-hunterpylelaw.pantheonsite.io/2020/05/can-they-fire-me-for-for-complaining-about-coronavirus-your-right-to-a-safe-workplace-in-california/].
You have the right to express any concerns you may have about the safety of your workplace.
Your employer also cannot lawfully terminate you for voicing concerns that your workplace puts you at risk for contracting COVID-19. Two separate sections of the California Labor Code protect workers who raise health and safety concerns in the workplace. More information on California’s whistleblower protections can be found here [hyperlink to “Can They Fire Me for Complaining About Coronavirus? Your Right to a Safe Workplace in California”: https://live-hunterpylelaw.pantheonsite.io/2020/05/can-they-fire-me-for-for-complaining-about-coronavirus-your-right-to-a-safe-workplace-in-california/].
You have the right not to return to work while a public health order restricting your workplace is in effect.
You also have the right not to return to work before your local government has lifted any lockdown restriction on your place of employment. Under California law, an employer cannot lawfully terminate an employee for refusing to perform some task that would be unlawful. This means that if the State of California or your local government has imposed COVID-19 restrictions that limit your ability to go into work, your employer cannot lawfully force you to come in. However, because COVID-19 public health orders include many exceptions and because these orders are always changing, employees should strongly consider consulting an attorney before refusing to return to work in reliance on a public health order.
What are your rights as an employee if you test positive for COVID-19?
If you test positive for COVID-19, your employer must send you home immediately. The CDC recommends that employees with COVID-19 symptoms isolate at home until: (1) at least 10 days have passed since symptom onset; (2) at least 24 hours have passed since resolution of fever without the use of fever-reducing medication; and (3) other symptoms have improved. Your employer may require you to stay home until you have met these requirements.
Employees who become ill with COVID-19 and are sent home may be eligible for several types of paid sick leave.
California Paid Sick Leave under California Labor Code Section 246
If you have worked at least 30 days for your employer in the past year, you should have accrued paid sick leave. California law mandates that all such employees accrue at least one hour of paid sick leave for every 30 hours worked. This leave may be used if you test positive for COVID-19 and are required to stay home.
Federal paid sick leave under the Families First Coronavirus Response Act (FFCRA)
The FFCRA provides up to 80 hours of paid sick leave at an employee’s regular rate of pay or minimum wage. In order to receive paid sick leave under the FFCRA, the leave must be taken to seek a medical diagnosis or if a healthcare provider advises you to self-quarantine. Paid sick leave benefits under the FFCRA cannot exceed $511 per day or $5,110 total. If you have already accrued paid sick leave, your employer must provide the FFCRA sick leave in addition to the existing leave.
The FFCRA only applies to private-sector employers with fewer than 500 employees. In order to be eligible, you must be unable to work or to telecommute for any of the following reasons: (1) You are subject to a federal, state, or local quarantine isolation order related to COVID-19; (2) You have been advised by a healthcare provider to self-quarantine related to COVID-19; (3) You are experiencing COVID-19 symptoms and seeking a medical diagnosis; (4) You are caring for an individual subject to a self-quarantine order or caring for a child whose school or daycare is closed for reasons related to COVID-19; or (5) You are experiencing a substantially similar condition specified by the Secretary of Health and Human Services (as of October 16, 2020, the Secretary of Health and Human Services had not identified any such substantially similar condition).
More information on the Families First Coronavirus Response Act (FFCRA) is available here.
California COVID-19 Supplemental Paid Sick Leave for Food Sector and Healthcare/Emergency Workers
California law now provides for up to two weeks of COVID-19 supplemental paid sick leave for qualified employees who work (1) within a food sector; (2) as a healthcare provider; or (3) as an emergency responder.
On April 16, 2020, Governor Newsom issued an executive order requiring private employers with 500 or more employees in the United States to provide COVID-19 supplemental paid sick leave to “food sector workers.” Full-time employees of these entities are entitled to 80 hours of supplemental COVID-19 paid sick leave, while part-time employees are entitled to the total number of hours they are normally scheduled to work over two weeks. Employers are required to pay this sick leave in addition to any sick leave the employee has accrued. Governor Newsom’s executive order was signed into law and codified as Labor Code section 248.1 on September 9, 2020.
On the same day, Governor Newsom also signed into law Labor Code section 248.1. Section 248.1 entitles healthcare providers and emergency responders to the same COVID-19 supplemental paid sick leave “food sector workers” are entitled to under Section 248.
Workers’ Compensation for Temporary Disability
California employees are generally eligible to receive workers’ compensation benefits if they become unable to work due to an occupational injury occurring on the job.
On September 17, 2020, Governor Newsom signed into law SB 1159, which creates several rebuttable presumptions that an employee’s illness with COVID-19 is an occupational injury. An employee is presumed to have contracted COVID-19 in the course of employment if: (1) The employee tested positive or was diagnosed within 14 days after the employee last worked; and (2) The last day the employee worked was after March 19, 2020. If the employee’s last day worked was between March 19 and July 5, 2020, the employee’s COVID-19 diagnosis must additionally have been made by a licensed physician or state-licensed physician’s assistant or nurse practitioner.
If the above presumptions apply to you and other specified criteria are met, you may be eligible for workers’ compensation benefits. While Hunter Pyle Law is not qualified to offer representation for workers compensation claims, if you believe you may have such a claim related to COVID-19, we will gladly refer you to a qualified attorney.
Legally, can you refuse to return to work if you have a pre-existing condition that puts you at high-risk for COVID-19?
It depends. The Americans with Disabilities Act (ADA) and California’s Fair Employment and Housing Act (FEHA) both prohibit employers from discriminating against employees due to a disability. This means that employers cannot take an adverse employment action against you—fire, demote, etc.—due to a disability you have, so long as you can perform your work duties with reasonable accommodations.
If you have a pre-existing condition that puts you at heightened risk for COVID-19, it is critical that you ask your employer for reasonable accommodations. One such reasonable accommodation might be working remotely from the safety of your home. Reasonable accommodations might also include working in a private office space or your employer taking additional safety precautions on your behalf. If you are able to perform the essential duties of your job while working remotely from the safety of your home, your employer cannot terminate you solely because your pre-existing condition dictates that you work from home.
However, employers are not required to provide accommodations that are unreasonable or that impose an undue hardship on their business. For instance, if you are unable to perform the essential functions of your job while working from home and you refuse to return to work, your employer may lawfully terminate your employment even if you have a pre-existing condition that puts you at heightened risk for COVID-19.
Can your employer require you to disclose your COVID-19 test results?
It depends. If you believe you have contracted COVID-19 or are experiencing symptoms, you should take leave and self-isolate at home. If you are entitled to paid sick leave under the Families First Coronavirus Response Act (FFCRA) and seek leave to secure a medical diagnosis, your employer cannot demand to see your test results before granting sick leave.
However, if you are returning to work after taking leave or after your employer closed its place of business due to a public health order, your employer may take certain steps to ensure the health and safety of its employees and customers. For instance, your employer may require you to provide a doctor’s note certifying your fitness for duty. Your employer may also administer a COVID-19 test to detect the presence of the COVID-19 virus or take your temperature. Your employer may not, however, require you to take an antibody test before returning to work.
What do you do if COVID-19 leaves you laid-off and unemployed?
If you are laid off due to COVID-19, consider applying for Unemployment Insurance. California’s Unemployment Insurance system is not a welfare or entitlement program. Instead, it is funded by a tax your employer pays on all of your wages.
In order to be eligible for California Unemployment insurance, you must be: (1) Unemployed through no fault of your own; (2) Physically able to work; (3) Available for work; and (4) Ready and willing to accept work immediately. Depending on how much you earned in the previous twelve months, you may receive between $40-$450 in benefits per week.
Additionally, on August 21, 2020, California was approved to participate in the federal Lost Wages Assistance (LWA) program, which provides supplemental payment of $300 per week for a minimum of 3 weeks. To be eligible you must be eligible to receive $100 in benefits and provide a self-certification that your unemployment is due to COVID-19.
The California Employment Development Department, which administers the state’s Unemployment Insurance program, has published information on how to apply for Unemployment Insurance here: https://unemployment.edd.ca.gov/guide/how-to-apply.
What are your rights as an employee if one of your co-workers tests positive for COVID-19?
If one of your co-workers tests positive for COVID-19, your employer must immediately send them home. California employers must provide all employees with “employment and a place of employment that is safe and healthful for the employees therein.” (Cal. Labor Code section 6400.) Businesses may choose to suspend operations when there is an of COVID-19 in the workplace, but they are not required to.
If you become sick with COVID-19, and you believe you contracted the illness either from a co-worker or while at work, you may be entitled to receive workers’ compensation for the time you are out from work. California employees are generally eligible to receive workers’ compensation benefits if they become unable to work due to an occupational injury occurring on the job. On September 17, 2020, Governor Newsom signed into law SB 1159, which creates several rebuttable presumptions that an employee’s illness with COVID-19 is an occupational injury. An employee is presumed to have contracted COVID-19 in the course of employment if: (1) The employee tested positive or was diagnosed within 14 days after the employee last worked; and (2) The last day the employee worked before his or her diagnosis was after March 19, 2020. Additionally, if the employee’s last day worked was between March 19 and July 5, 2020, the employee’s COVID-19 diagnosis must have been made by a licensed physician or state-licensed physician’s assistant or nurse practitioner.
If the above presumptions apply to you and other specified criteria are met, you may be eligible for workers’ compensation benefits. While Hunter Pyle Law is not qualified to offer representation for workers compensation claims, if you believe you may have such a claim related to COVID-19, we will gladly refer you to a qualified attorney.
Do you have the right to know which of your co-workers are infected or recovered from COVID-19?
Unfortunately, you do not have the right to know which of your co-workers are infected or recovered from COVID-19. Under the Americans with Disabilities Act (“ADA”), employers may gather certain information about the health of their employees. For instance, employers may take the temperatures of employees and ask whether employees are experiencing symptoms of COVID-19 or have had contact with anyone diagnosed with COVID-19. However, employers must maintain this information as a confidential medical record. Employers are prohibited from disclosing any of this information to other employees.
Do any kind of health care workers right now get hazard pay due to COVID-19?
Unfortunately, neither Congress nor the California Legislature has funded any kind of hazard pay for frontline healthcare workers. The HEROES Act passed by the House of Representatives includes hazard pay, but it has not been passed by the Senate.
Some employers have awarded small raises or bonuses to essential workers whose work puts them at heightened risk for contracting COVID-19. If your job places you at greater risk for contracting COVID-19, it may be worth asking your employer if they are willing to provide hazard pay. Doing so makes sense from a legal perspective. Employees agree to perform certain duties in exchange for a certain rate of pay. COVID-19 creates additional risks; therefore, it makes sense for employees to receive additional pay. Additionally, providing hazard pay may help build trust among employees and improve the company’s image from a public relations perspective. Strictly speaking, however, employers are not at the moment required to provide hazard pay to essential workers facing heightened risk for COVID-19.
Healthcare workers who contract COVID-19 may be entitled to supplemental paid sick leave. On April 16, 2020, Governor Newsom signed into law Labor Code section 248.1, requiring private employers with 500 or more employees in the United States to provide supplemental paid sick leave to healthcare providers and emergency responders. Full-time employees are entitled to 80 hours of supplemental COVID-19 paid sick leave, while part-time employees are entitled to the total number of hours they are normally scheduled to work over two weeks. Employers are required to pay this sick leave in addition to any sick leave the employee has accrued.
How can an employee fight for a severance if he/she has been laid off during COVID-19?
Under California law, employers are not required to provide terminated employees with severance. Companies may, however, have their own internal policies regarding severance. If you believe your employer may have such a policy, you should ask for a copy.
In general, an employer will offer severance in exchange for you agreeing to waive any legal claims you may have against your employer. If you believe your employer may have violated the law, whether in the course of your work for them or in the manner in which you were laid off, it is important to speak with an attorney before signing the severance agreement and waiving your potential claims.
New Amendment to Existing Law Strengthens Rights of California Employees Who Enter Into Settlement Agreements with Their Employers
The majority of disputes that arise in the workplace and proceed to litigation find their resolution not at trial, but in a settlement—agreed to by the employer and the employee and hopefully beneficial to both.
Because so many cases end in settlement, the terms of the settlement agreement become crucial for ensuring a just outcome that is fair to both parties. This is especially so because the power dynamic in negotiations between employers and their employees is often skewed in favor of the employer.