Post-COVID or Long-COVID As a Disability

What is Post-COVID condition? According to the CDC, although most people with COVID-19 get better within weeks of illness, some people experience post-COVID conditions. Post-COVID conditions are a wide range of new, returning, or ongoing health problems people can experience four or more weeks after first being infected with the virus that causes COVID-19. Even people who did not have COVID-19 symptoms in the days or weeks after they were infected can have post-COVID conditions.  This prolonged after-effects of COVID may have different names such as long COVID, long-haul COVID, post-acute COVID-19, long-term effects of COVID, or chronic COVID. Regardless of the name, the effect is the same; that is, for some people the road to recovery from COVID-19 will take longer than the anticipated 2 weeks.  Some of the reported symptoms include: Difficulty breathing or shortness of breath Tiredness or fatigue Symptoms that get worse after physical or mental activities Difficulty thinking or concentrating (sometimes referred to as “brain fog”) Cough Chest or stomach pain Headache Fast-beating or pounding heart (also known as heart palpitations) Joint or muscle pain … Continue reading

In: California Leave Law, Employment Law, Uncategorized | Leave a comment

California Supreme Court Clarifies Proper Way to Pay Meal Period and Rest Break Premiums

The California Supreme Court, in the case of Jessica Ferra v. Loews Hollywood Hotel, LLC recently clarified the correct way to calculate meal period and rest break premium pay . . . and it’s not how most California businesses were calculating it.  What are Meal Period and Rest Break Premiums? California Labor Code Section 226.7 requires employers to pay employees “one additional hour of pay at the employee’s regular rate of compensation for each workday” that an employee was not provided with a meal or rest period.  Unfortunately, many employers are not aware of this requirement to pay a meal and rest period premium if employees are not able to take their meal breaks and rest breaks. Before we discuss the correct way to pay the premiums, let’s review the basic meal and rest break rules in California. What are the Rest Break Rules in California? In California, the Wage Orders require employers to authorize and permit non-exempt employees to take a 10-minute, uninterrupted, rest period for each four-hour work period or major fraction thereof. The Division of Labor Standards … Continue reading

In: California Civil Litigation, Employment Law, New Laws, Uncategorized | Leave a comment

Accommodating Employee with Anxiety

About 40 million American adults or approximately 18% of the population suffers from an anxiety disorder according to the Anxiety and Depression Association of America. This makes anxiety disorders the most common mental illness in the United States. Excessive anxiety can interfere with daily activities such as job performance, school work, and relationships, at a certain level, it could meet the definition of a disability under the Fair Employment and Housing Act (FEHA). Since almost 1 in 5 adults suffers from an anxiety disorder, it is likely that an employer with five or more employees (and therefore subject to FEHA) will have an employee who suffers from an anxiety disorder.  What is an employer’s obligation if it learns that an employee suffers from anxiety and it’s affecting the employee’s ability to work?  Assuming that an employee suffers from severe or chronic disorder that interferes with their activities of daily living (not merely the occasional anxiety that we may feel when faced with uncertainty, a micro-manager, or the like), below are some basic steps an employer should follow. Remember the objective. … Continue reading

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Salary History and Equal Pay Laws Clarified

News of the Pay Privacy law prohibiting reliance on an applicant’s salary history in determining employment and pay hit the business world at the end of 2017 and went into effect in January 2018.  Since pay is a large factor in the hiring decision, the new law raised many questions among business owners who are especially concerned about complying with California employment laws.  Some of the common questions related to the salary history requirements and equal pay were: Is it legal to ask an applicant about their desired salary or salary requirement? Am I liable if an applicant voluntarily gives me their salary history or what they made a their last job? If an applicant voluntarily discloses their salary history, can I take that information into consideration? What about a current employee, I already know what they make, so can I take their salary into consideration to determine raises or pay for a new or different position? The conflict between California labor and employment laws and the practical questions that business owners must ask and take into consideration in order … Continue reading

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Off-the-Clock Work Must be Paid

Last week, the California Supreme Court, in a case called Troester v. Starbucks Corporation, confirmed that California wage and hour law “does care for small things.” In this case, it cares about small increments of time spent on work off-the-clock by hourly employees. Small increments in this case is about 4 to 10 minutes after clocking out. De Minimis Doctrine This is a departure from federal law’s more employer-friendly version of the de minimis doctrine. The de minimis doctrine is an established defense under the Fair Labor Standards Act (FLSA), which allows employers to disregard time as de minimis (and therefore not have to pay employees for that time) if the employer could prove: (1) it would be difficult and impractical for the employer to record the additional time; (2) the total amount of compensable time is minimal; and (3) the additional work is irregular. For example, pre-shift or post-shift meetings. Starbucks Hourly Employee Worked 4 to 10 Minutes Off-the-Clock Each Shift In the Troester v. Starbucks case, Douglas Troester worked for Starbucks as an hourly shift supervisor. As part of … Continue reading

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Overtime Pay and Flat Rate Bonuses

Unpaid overtime is one of the most common wage and hour claims against employers and proper calculation of overtime pay can be extremely confusing. Employers often want to incentivize employees with bonuses, but unwittingly create increased exposure for failure to correctly pay overtime. An example of how incentivizing employees could blow up in an employer’s face is the recent Supreme Court decision in Alvarado v. Dart Container Corporation of California. Defendant Dart Container is a manufacturer of food service products. Plaintiff Hector Alvarado was employed as a warehouse associate who was paid on an hourly basis and who, in addition to his normal hourly wages, received an “attendance bonus” of $15 per day that he was scheduled to, and did work, on a weekend day. He received the $15 flat rate bonus regardless of whether he merely completed the shift or exceeded the shift and worked overtime hours. The gist of the dispute was this: How to calculate the regular rate of pay for purposes of calculating the overtime pay rate (generally, 1.5 times the regular rate of pay)? The … Continue reading

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New Law 2018 – Pay Privacy

“What did you make at your last job?” will be an illegal question when asked of a job candidate in 2018.  California’s Governor Jerry Brown signed AB-168, the salary privacy bill, into law on October 12, 2017.  The law goes into effect on January 1, 2018, and applies to all California employers regardless of size and whether they are in the private or public sector. There are three main parts to the new Section 432.3 of the California Labor Code: An employer shall not rely on an applicant’s salary history as a factor in determining whether to offer employment to an applicant or what salary to offer an applicant. An employer shall not, in any way, either directly or indirectly through third parties, seek an applicant’s salary history information (compensation and benefits). An employer, upon reasonable request, shall provide the pay scale for a position to an applicant applying for employment. However, employment applicants may voluntarily disclose their prior salary history (without prompting), in which case, the employer may use the voluntarily provided salary history in determining that applicant’s salary.  … Continue reading

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Biometrics and the Fingerprinting Time Clocks

Employees sued a national supermarket chain alleging that the employer violated the Illinois Biometric Information Privacy Act (BIPA) when it failed to satisfy the notice requirements for obtaining and keeping employee fingerprints used for timekeeping purposes.  The potential damages are significant, especially for bigger employers.  Under BIPA, a prevailing party may recover the greater of actual damages or $1,000 for negligent violations or $5,000 for reckless or intentional violations, plus attorney’s fees and costs. As the use of biometric data like fingerprints and thumbprints for clocking in and out grows in popularity so does the potential for liability.  Employers who use biometrics for timekeeping should be aware of the laws regulating the use of biometrics in each and every state where you operate.  For example, Texas has a similar law to BIPA and other states like Alaska, Montana, New Hampshire and Washington are considering bills similar to BIPA. What about California? California employers will be pleased to learn that California does not have the same notice requirement as BIPA.  However, California employers who require the submission of fingerprints and/or photographs … Continue reading

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Age Discrimination in Hiring

I previously wrote about the age discrimination verdict against Staples. Last week, NPR published a story about a study by David Neumark and two other professors of economics at UC Irvine showing that the call-back rate for applicants drop as applicants’ ages increase. Older women witnessed lower call-back rates than older-men and “dropped by around a quarter when you go from the young group to the middle-aged group . . . . And they drop by another quarter when you go from the middle-age group to . . . around age 65.” Section 12940 of California’s Fair Employment and Housing Act prohibits age discrimination in hiring, selection for training programs leading to employment, and in other terms, conditions, or privileges of employment. Additionally, employers must “take all reasonable steps necessary to prevent discrimination and harassment from occurring.” Although discriminatory hiring practices are not always blatant, and many job applicants fail to get hired without knowing the true reason why, employers found in violation of the anti-discrimination laws wind up entangled in expensive lawsuits. One such lawsuit was a federal class-action lawsuit against … Continue reading

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What to Do: Employee Leaves With Trade Secrets

Losing an employee, especially a key employee, is difficult for any business. You’ve invested time, know-how, and resources in your employees and they in turn are the lifeblood of your business. Unfortunately, people leave and when they leave, it is usually to work for a competitor or even to start a competing business. If that employee had access to your company’s confidential information such as customer lists, customer preferences, pricing formulas, and any other information that gives you a competitive edge, you want to make sure that the employee can’t take that valuable information to a competitor. How do you protect trade secrets from a competitor when an employee leaves? I have good news and bad news for you. The bad news: If the first time you think about protecting your company’s confidential information is after a key employee leaves, it may be too late. One of the fundamental requirements under California and Federal laws that protect trade secrets is the requirement that you made reasonable efforts to keep that information a secret. Thus, if you haven’t thought about how … Continue reading

In: California Civil Litigation, Contracts, Employment Law, What to Do | Leave a comment