Labor and Employment

On August 27, 2020, the U.S. Department of Labor (DOL) published three new “Return to School” FAQs providing guidance for employers and employees as schools reopen across the country. Specifically, the DOL clarified when employees may be eligible for leave under the federal Families First Coronavirus Response Act (FFCRA).

As a reminder, under the FFCRA, job-protected leave must be provided to some employees in order to care for a child whose school or place of care is closed, or childcare provider is unavailable, due to the coronavirus. The newest FAQs address issues employers and employees are facing as schools reopen both virtually, as well as on a “hybrid” model. The DOL further provides guidance on situations where schools have reopened, but the parent chooses a virtual model for their child’s learning.

Scenario 1: School Remains Fully Remote

Many schools across the country (and most in California) are currently only offering remote learning. In FAQ 100, the DOL confirmed that parents are permitted to take paid leave under the FFCRA for as long as the school remains closed to in-person learning.

Scenario 2: School Reopens on a Hybrid Model

Under a hybrid model, a school is typically open, but students alternate between in-person and remote learning. Under FAQ 98, the DOL clarifies that parents are eligible to take paid leave under the FFCRA on days where the child is not permitted to attend school in person, and must instead engage in remote learning. FFCRA leave is not available, however, at times when the child is able to attend school in-person.

Scenario 3: School Reopens, but Parent Chooses Remote Option

Most schools offering in-person learning are also providing a virtual option for parents who are concerned about their child returning to school. The DOL clarifies in FAQ 99 that FFCRA leave is not available to take care of a child whose school is open for in-person attendance. It is worth noting, however, that if the child is under a quarantine order or has been advised by a health care provider to self-isolate or self-quarantine, paid leave might otherwise be available.

The full FAQ’s can be found here (https://www.dol.gov/agencies/whd/pandemic/ffcra-questions). If you have questions as to whether FFCRA applies to you and your employees, and whether paid leave might be available, please contact your Weintraub Tobin labor and employment attorney for help.

With 31% (or more) of American workers working from home as of April 2020, according to a survey cited by the Bureau of Labor Statistics, and probably even more since then, most employers face important questions: what is the obligation to keep track of employees’ active work time and pay them for it?  On August 24, 2020, the United States Department of Labor (DOL) issued a “field assistance bulletin” to assist employers in understanding their obligations to monitor employees’ hours, and pay them for all hours worked.

The DOL is the federal agency that enforces the federal Fair Labor Standards Act (FLSA).  The FLSA (and California state law) requires that employers pay employees for all hours worked, including overtime.  This includes work that is not pre-authorized: “Work not requested but suffered or permitted is work time” and must be paid.  (29 C.F.R. § 785.11; Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004.)

This concept applies equally to telework performed at the employee’s home. (Id. § 785.12.) “If the employer knows or has reason to believe that the work is being performed, [the employer] must count the time as hours worked.” (Id.)

Employees who are properly classified as exempt from the FLSA (and California’s Industrial Wage Orders) are paid on a salary basis, regardless of the number of hours or work schedule.  But, employees who do not meet all of the criteria for an exemption (job duties, hourly rate, and basis of pay) must be paid for every hour worked, including overtime.

The DOL’s interpretive rules state that “[e]mployers are required to exercise control to ensure that work is not performed that they do not wish to be performed.” (Id. § 785.13.)  For example, a manager who schedules weekly conference calls with telecommuting employees (especially those in other time zones) should be mindful of the employees’ work hours.  Employees’ participation in conference calls outside of work hours is implicitly authorized, and if employees do not report the time spent on these calls, the employer has constructive knowledge of, and must compensate, overtime work.

The law does not require an employer to pay for work “it did not know about, and had no reason to know about.” (Kellar v. Summit Seating Inc., 664 F.3d 169, 177 (7^th Cir. 2011) (emphasis added).)  In the language of the statute, the employer could not have “suffered or permitted” work it did not know and had no reason to believe was being performed. (See 29 C.F.R. §§ 785.11–.12.)  An employer is not obligated to police employees, and when employees are clocked out, this creates a presumption they are doing no work – but the presumption can be rebutted by evidence that the employer knew or should have known work was being performed. (Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1040, 1051.)

In sum, failing to pay for unreported work that the employer did not authorize and has no way of knowing was being done would not violate the law, but if an employer knows about the work, even if they didn’t ask for it to be done, they must pay for the work.

Violations of the FLSA and state wage orders can result in civil penalties, statutory penalties, and attorneys’ fees and costs.  To avoid liability for wage and hour violations, employers must use reasonable diligence to determine when work is being performed, and take reasonable measures to prevent unwanted work.

When does an employer have “reason to believe” work is being performed?

An employer must pay for work if it has actual or “constructive” knowledge that work is being performed.  The DOL makes clear that it is not enough to merely have a policy prohibiting unauthorized work.

For example, if a supervisor emails an employee after hours and the employee responds after hours, the employer has actual knowledge of work being performed.

Likewise, if a project is assigned by a supervisor at the end of a workday, does not set a clear expectation that the employee should wait until the next workday to perform the task, and the project is turned in before the start of the next shift, the employer would have constructive knowledge of the employee’s after-hours work – and would be obligated to confirm that the employee properly logged their after-hours work time.

In this era of remote access, it is theoretically possible for employers to use tracking software on employer devices, monitor remote login times, review phone or data use records, etc., and then cross reference those times to employees’ time sheets.  While those tools could be helpful in situations where the employer otherwise has reason to believe an employee performed after-hours work that did not get reported, the DOL makes clear that the onerous burden of sorting through all of this data for every employee every work day, and comparing it to timesheets, is not required.

How can an employer manage this obligation from a practical perspective?

An employer may satisfy its “reasonable diligence” obligation to acquire knowledge regarding employees’ unscheduled hours of work, by establishing a reasonable process for an employee to report unpaid work time.

Creating a reasonable reporting system – and making sure employees are not discouraged or prevented from using the system – has been found to satisfy this obligation.  For example, employers’ timekeeping software should allow employees to enter their actual work time (not just a pre-set scheduled start and end time).

Today’s timekeeping software may have features to allow employees to clock in and out multiple times per day, or to allow an employee to go back in and correct a time entry even if it is outside of the scheduled shift time, and/or to sign off on a verification when a timesheet is submitted at the end of a pay period.  Or, employers may provide employees with a form to submit time sheet corrections, or have a written policy that encourages employees to review their timesheets and email their supervisor and payroll to submit any corrections each pay period.

In addition, employers may have the ability to limit nonexempt employees’ after-hours access to company software.

How does an employer prevent employees from working more hours than authorized?

Employers should have a written policy that requires employees to accurately record all hours worked, stating that they should seek approval for working overtime, and forbidding unauthorized overtime or work outside of scheduled hours (including emailing, texting, and using work instant messaging software).  The policy should state the consequences: violators will be paid for the hours they worked, but can be disciplined, and even fired, for violating the policy.  Swift and consistent enforcement of these policies should quickly curb repeat violations.

But, even with such a policy, employers should train supervisors to ensure that they do not discourage employees from recording all hours worked or encourage them to work off the clock.

If you have questions about best practices or California or federal wage and hour laws, please contact your Weintraub labor and employment attorney.

Almost five years ago, I wrote an article published in the Daily Recorder about a ruling in the Tiffany & Co. v. Costco Wholesale Corporation case filed in the United States District Court for the Southern District of New York. Specifically, I wrote about the Court granting Tiffany’s motion for summary judgment on liability, permitting Tiffany to proceed to trial on the issue of damages. Tiffany eventually did exactly that and obtained a $21 million judgment against Costco for selling unbranded engagement rings as “Tiffany” diamond engagement rings. But just over a week ago, the Second Circuit Court of Appeals vacated the judgment of the District Court and remanded the case for trial.

To recap, Tiffany sued Costco for selling other rings and using the word Tiffany on nearby signage to describe those rings, claiming trademark infringement and unfair business practices. Costco responded to the allegations by claiming that “Tiffany” is a word used throughout the industry to refer to a particular style of setting–a diamond solitaire in a six-prong setting. Costco argued that consumers are aware of this use of “Tiffany” and that its use was therefore unlikely to cause consumer confusion. Costco also argued that Tiffany is not a legally protected trademark because the mark is descriptive or generic for that style of setting. For that reason, Costco requested that the Court cancel Tiffany’s trademark.

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On August 7, 2020, the San Francisco Office of Economic and Workforce Development (OEWD) released its guidance on the City of San Francisco’s “Temporary Right to Reemployment Following Layoff Due to COVID-19 Pandemic Emergency Ordinance” (also known as the “Back to Work” Ordinance), which the Board of Supervisors passed on June 23, 2020.  Importantly, the OEWD released template forms on its website that employers may use in reporting layoffs and reemployment offers to the OEWD as required under the Ordinance.

San Francisco employers who have laid off or are considering laying off 10 or more workers as a result of the COVID-19 pandemic should make sure they comply with the new ordinance while it remains in effect.  The Ordinance requires employers operating in San Francisco to offer reemployment to “eligible workers” laid off as a result of the COVID-19 pandemic and the related shelter-in-place/stay-at-home orders in San Francisco when they are rehiring for the same or similar classifications.  The Ordinance also requires that employers provide notice of the layoff and of reemployment offers to both laid off workers and the OEWD.

The Ordinance went into effect on July 3, 2020 and will remain in effect through September 1, 2020, unless the Board of Supervisors extends it.

To read the full article, please click here.

A blog we published here on May 28, 2020, warned that whistleblower, disability and leave claims against employers may reach a fever pitch as workplaces begin reopening from the COVID-19 shutdown.  A recent audit by the U.S. Department of Labor Office of Inspector General (“OIG”) confirms that some of those types of claims already are spiking.

That OIG report, dated August 14, 2020, and made public this week, found that increases in virus-related complaints may severely impair the ability of the federal Occupational Safety and Health Administration (“OSHA”) to investigate such claims promptly.  “We found the pandemic has significantly increased the number of whistleblower complaints OSHA has been receiving,” the report stated.

In particular, the report indicates that the pandemic has resulted in a 30-percent jump in whistleblower complaints during its first four months as compared to the same period in 2019.  OSHA received about 4,100 whistleblower complaints from February through May 2020, according to the OIG report, and about 1,600 of them were related to COVID-19; for example, claims that an employer retaliated against an employee for reporting violations of rules requiring social distancing or personal protective equipment (“PPE”).

Employees who suffer adverse job actions after reporting such violations to a supervisor or a governmental entity in California are not restricted to filing an OSHA complaint.  Instead, those employees can retain a lawyer and sue their employers for damages in civil court.

At the same time, employers may see an increase in disability or leave claims, or even other types of discrimination claims, as they reopen their businesses or further restrict their operations in response to the pandemic.  Thus, California employers should consider taking the following four steps to reduce the incidence of such costly lawsuits:

First, do not violate or direct your employees to violate governmental shelter-in-place, social-distancing, sanitary or PPE restrictions or regulations.

Second, whenever making a termination decision, be sure it is for reasons that have absolutely nothing to do with the employee’s refusal to violate some public policy (e.g., a statute or regulation) or the employee’s complaints about reasonably perceived violations of some public policy.

Third, take every request for a disability accommodation or leave of absence seriously and analyze each one independently on its own merits.  In that regard, be sensitive to actual or perceived disabilities, do not make medical assumptions, work hard to identify and implement reasonable accommodations for disabled employees, and be vigilant in guarding against harassment of employees on the basis of some perceived or actual medical condition.

Fourth, make certain that personnel decisions have nothing to with protected classifications (e.g., age, race, gender, religion) and carefully analyze how decisions may impact protected classes of employees.

Even these steps cannot completely immunize employers against all these types of lawsuits, yet failing to adopt such protective measures probably will increase the risk of exposure to these afflictions.  Obtaining early legal advice also may decrease the frequency or cost of these exorbitant types of lawsuits.

The CDC has issued new guidance for in-home patients diagnosed with COVID-19, including lowering the number of days the patient must remain isolated after being fever-free. The CDC previously recommended that “at least 72 hours” pass since the last fever without the use of fever-reducing medication before ending self-isolation. Noting “accumulating evidence” and ongoing research into COVID-19 treatment, the CDC lowered the recommended isolation to “at least 24 hours.”

Researchers have further reported that people with mild to moderate COVID-19 symptoms remain infectious for no longer than 10 days after their symptoms begin, while those who are hospitalized with more severe symptoms and/or severely immunocompromised conditions can remain infectious no longer than 20 days after their symptoms begin.

Based on these and other findings (detailed more fully here), the CDC updated its recommendations for discontinuing home isolation. If an employee is diagnosed with COVID-19, or the doctor believes they have COVID-19, and the employee was directed by a doctor to care for themselves at home (or otherwise outside a hospital setting, e.g. in a hotel, dormitory or isolation facility), the new CDC guidance is that such persons may discontinue isolation under the following conditions:

• At least 10 days have passed since symptom onset, and
• At least 24 hours have passed since resolution of fever without the use of fever-reducing medications, and
• Other symptoms have improved.

As with most other CDC guidance, this change may be adopted by state and local health departments so it is wise to check with your local, county and state health departments for further direction.

The California Department of Public Health (“CDPH”) issued its “COVID-19 Employer Playbook” on July 24, 2020 in an effort to provide employers with a comprehensive guide related to COVID-19 as employers reopen their business. According to the CDPH, by following the Employer Playbook, employers will be able to do their part in reducing the risk and spread of COVID-19 in the workplace, and ensure that California businesses stay open. The subjects covered in the Playbook include how to open safely; what to do if there is a case of COVID-19 in the workplace; worker education; and enforcement and compliance. The Playbook contains many links to various employer and worker resources, as well as case studies to help illustrate the importance of implementing proper social distancing and safety measures.

You can obtain a copy of the CDPH’s Employer Playbook at: https://files.covid19.ca.gov/pdf/employer-playbook-for-safe-reopening–en.pdf

The Labor and Employment attorneys at Weintraub Tobin continue to wish you and yours health and safety during these challenging times.  If we can assist you with your employment law needs, please feel free to reach out to any one of us.