Our employment contracts contain an arbitration clause. Is that ok?

Arbitration in California has evolved over the past 20 years.  While the current mood among legislators and in the courts is to invalidate arbitration provisions that were forced on employees, employers can continue to require disputes to be resolved by arbitration.  However, should the agreement be challenged, it is very likely that the agreement itself and the circumstances of its signing will be scrutinized under a legal microscope. Courts are routinely refusing to enforce poorly drafted or outdated arbitration agreements, so now is the time to review your existing employment documents (contracts, handbooks, stand-alone agreements, policies and procedures) to make sure any arbitration agreements are drafted in a way to maximize their enforceability.

If you would like to review your employment documents with an experienced California employment law attorney, or have questions that weren’t answered here, we invite you to contact JDS Law, Inc. to schedule a consultation.

My employee wants to work through lunch and leave early. Can I agree to that?

Employees can voluntarily work through their lunch.  Be sure to get documentation from the employee showing that the employee chose to not have a compliant meal period.  There is no meal period violation if an employee voluntarily chooses to work during a meal period, as long as the employer:

  • Relieves the employee of all work duties;
  • Relinquishes control over their activities;
  • Permits employees a reasonable opportunity to take an uninterrupted 30-minute break;
  • Does not impede or discourage the employee from doing so; and
  • Completely and accurately records its compliance with California law, including documentation from the employee that it was the employee’s choice to forego or take a shorter meal period.

For more information, we encourage you to read more about compliance with California meal period law.

Can I hire independent contractors to work for me in California?

When it comes to hiring workers as independent contractors (aka “1099 workers”), California employers must proceed with caution.  Since Governor Newsom signed Assembly Bill 5 (“AB 5”) into law on September 4, 2020, the very concept of an independent contractor has fundamentally changed.  That law created an initial presumption that a worker in California is an employee unless the employer can satisfy a three-pronged test, the “ABC Test”, including the now-infamous prong B, by showing that the worker performs work that is outside the usual course of the hiring entity’s business.  The consequence of AB 5 is that, unless an exemption applies, the only workers who will be considered independent contractors are more akin to subcontractors who perform work that is not like work performed by employees in the business.

What are some must-have employment policies for California employers?

It is not just our exceptional weather that sets California apart from much of the country.  Employment policies that work in other states or that comply with federal law may not work in the Golden State.  With our infamously aggressive plaintiffs’ bar and the proliferation of class action lawsuits and representative actions such as those brought by aggrieved workers under the Private Attorney General Act (“PAGA”), every California employer should have the following employment policies written and communicated to their entire workforce:

  • At-will employment policy
  • Anti-harassment, discrimination, and retaliation policy
  • Timekeeping policy and prohibition against “off-the-clock” work
  • Meal period and rest break policy
  • Lactation accommodation policy
  • Time off and leave policies

These policies can be included in a simple but complete employee handbook, which can be a one-stop shop for all of your employment policies. If you need assistance drafting an employee handbook or have any questions about the above list, contact us.

We are a small business. Do we have to provide paid sick leave to employees affected by COVID-19?

A number of complex leave laws may be triggered when you have an employee affected by COVID-19.  You will want to consult employment counsel for your specific situation, but some general examples of leave laws affecting California employers with less than 50 employees include:

  • If the employee was infected at work, s/he may be eligible for workers’ compensation.
  • If the employee or a family member is sick or needs preventive care such as recommended quarantine or stay-home order, employees may choose to take the leave they have accumulated under the Paid Sick Leave Law This law entitles employees to one hour of paid sick leave for every 30 hours worked or 24 hours (3 days) provided per year, subject to allowable caps on accrual.
  • If the employee is unable to work because of medical quarantine or illness related to COVID-19, they may be eligible for short-term disability insurance payments that provide partial wage replacement.
  • If the employee is unable to work because of caring for an ill or quarantined family member, eligible employees may be entitled to up to eight weeks of partial pay under California Paid Family Leave law.
  • If the employee lives or works in a locale with its own paid sick leave requirements, the employee may be entitled to additional paid sick leave pursuant to that local government paid sick leave law.

If you have more than 25 employees, they may be entitled to up to 80 hours of COVID-19 supplemental paid sick leave under a recent law enacted by Governor Gavin Newsom on March 18, 2021. 

We have an employee who tested positive for COVID-19. What can we tell her co-workers?

Under California Assembly Bill 685, employers who receive “notice of potential exposure” to COVID-19 of an employee who was physically at the worksite must, within one business day, notify all employees who were also present with the affected employee during the window of potential infection. The notice must be in writing and delivered in the way the employer typically communicates with workers, but it cannot include any personally identifiable employee information.  In addition to potentially exposed employees, the employer must also notify the employers of any subcontracted employees, and any union representative, and must comply with additional technical notice requirements or face costly civil penalties.  If three or more employees test positive, that is considered an “outbreak” and additional notice requirements must be met.

We have been cleared to return to work, but my employee is refusing to come back to the worksite. What can I do?

The first step is to learn why the employee is refusing to return to the worksite.  If the reason is related to a disability or for religious reasons, you will need to engage in a good faith interactive process with the employee to see if a reasonable accommodation is possible and would not be an undue burden on the business.  Remote work can be such an accommodation.

An employee who is just generally fearful of returning to the workplace does not have to be accommodated; however, this is an opportunity to communicate with your workforce and reassure them that you are committed to providing as safe a workplace as possible.  Show your workers that you have complied with all applicable guidelines and protocols, including a written COVID-19 Prevention and Response Plan, cleaning, masking and social distancing protocols, and the availability of paid leave for employees who may be ill or who are getting tested or being vaccinated. 

If the employee still refuses to return to work, employers can enforce their “reasonable disciplinary policies and practices” against employees who refuse to return to work and who aren’t entitled to accommodation.  This means that an employer can terminate the employment of an employee who refuses to return to work.  We recommend that you consult with legal counsel before taking any adverse employment action in this area, to analyze the legal risk, such as the employee arguing that s/he was terminated for engaging in protected activity.

Can I require my employees to receive the COVID-19 vaccination or provide a negative COVID-19 test before they can return to work?

The short answer is yes, as long as you pay for it and the employees’ time getting it, and you do not discriminate.  The California Department of Fair Employment and Housing (DFEH) oversees this area of California employment law, and the DFEH recently clarified that employers may mandate vaccines approved by the U.S. Food and Drug Administration. Employers may request proof of vaccination but must take steps to protect employee privacy. There are wage and hour implications with a mandatory vaccination policy, so be sure to work with your employment counsel before implementing such a policy.