COVID-19

Following the passage of the CARES Act, millions of Americans have received the help they desperately needed during this economic crisis.  As mentioned in more detail in our previous blog entry, one of the primary benefits of the CARES Act is that individuals are receiving an additional $600 a week through the end of July.  As a result of this “unemployment on steroids”, many individuals are now earning more through unemployment than they did at their jobs.  When, and if, these employers ask employees to come back to work, employees are pondering whether they should stay on unemployment or take the job, and the pay cut.  While many are crying foul, the long-term incentive of employment likely trumps the short term “windfalls” of temporary assistance.

The minimum wage in California is $13 an hour for employers with more than 26 employees and $12 an hour for employers with less than 26 employees.  An employee who earns $13 an hour and works 40 hours a week, earns $520 a week and $27,040 annually.  In California, unemployment benefits are calculated by dividing the sum of wages earned during the highest quarter of an employee’s base period by 26, which means a minimum wage earner who only works 40 hours a week, would be entitled to $240 a week.  Previously, the maximum amount an employee could receive was $450 a week, but with the CARES Act’s $600 addition, an employee can now receive a maximum of up to $1,050 a week, which means workers who earned between $12 – $24 an hour are now making more from unemployment benefits than their full time jobs.

On the surface, choosing between work and unemployment is an easy decision for these employees, but failing to come back to work could lead to major consequences.  Most importantly, refusing to resume a job that wants you back could disqualify you from receiving unemployment benefits altogether.  To be eligible for unemployment, you must be willing to accept “suitable work,” which  means work in the individual’s usual occupation for which the employee is reasonably fitted.  Accordingly, refusing to return to “suitable work” and subsequently being stripped of unemployment benefits could leave you with nothing.

Work is not “suitable,” however, if the “wages, hours, or other conditions of the work offered are substantially less favorable to the individual than those prevailing for similar work in the locality.”  Thus, if your wages are dependent on tips, such as restaurant servers, you may still be able to collect unemployment after refusing to return to your position if tips aren’t part of the compensation anymore.  Additionally, if the employment puts your “health, safety, and morals” at risk, it may not be considered “suitable employment.”  For example, if you believe your prospective employer is not following CDC guidelines to maintain a safe workplace, you may be able to refuse an offer of employment and continue receiving unemployment benefits.

The $600 unemployment benefit will expire on July 31, 2020, and Congress is unlikely to extend the benefit past this date.  When the benefit reverts back to the normal California amount on August 1, 2020, most earners will earn much less than their previous income.  By that time, it may be difficult to find work, as the Economic Policy Institute predicts unemployment to reach 15.6% by July. Currently, an unemployed Californian can only collect 39 weeks of unemployment.

Unemployment benefits also do not account for the added value of your employer’s benefits, especially health insurance, if those are also provided.  Indeed, employers typically pay the lion’s share of an employee’s health care premiums.  The cost of continuing health benefits under the Consolidated Omnibus Budget Reconciliation Act (“COBRA”) will be pricy.  Altogether, healthcare and retirement benefits account for nearly 30% of an employee’s total compensation.

With the expanded Paycheck Protection Program (“PPP”), employers are incentivized to keep employees on their payroll.  Specifically, if an employer procures a PPP loan, that loan may be completely forgivable if the employer uses 75% of the loan for payroll.  Thus, employers have a fiscal interest in keeping employees on the payroll and putting them back to work.  Millions of employees, however, are reluctant to take their minimum wage jobs back, especially because many of those jobs barely kept the lights on anyway.  The pandemic is creating additional financial strain, including rising prices of goods (i.e., the meat industry) and families are incurring unique costs of keeping children at home 24/7.  Accordingly, many workers might find it beneficial to ask for a raise, as they now have some bargaining power.  Indeed, if an employer received a PPP loan and employees refuse to return to work, that employer will have extra money that it budgeted for payroll and will now have to go elsewhere, which may impact the employer’s eligibility for loan forgiveness.  Nevertheless, employees should be cautious when turning down “suitable work,” as they may be left high and dry during an economic depression.

To schedule your free initial consultation, contact us online or call (619) 342-8000 today!

The U.S. Equal Employment Opportunity Commission (“EEOC”) issued new guidance to employers on April 23, 2020, that employers are allowed to test employees for COVID-19 before they enter the workplace.

The EEOC explained that the Americans with Disabilities Act (“ADA”) requires any mandatory medical tests of employees be “job-related and consistent with business necessity” and that “an individual with the virus will pose a direct threat to the health of others.

Therefore, an employer may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus.”

In regard to the testing, the EEOC warned and reminded employers that:

• Employers should ensure the tests are accurate and reliable.

• Employers may consider the incidence of false-positives or false-negatives associated with a particular test.
• Employers must remember that accurate testing only reveals if the virus is currently present, and a negative test result does not mean an employee will not acquire the virus later.
• Employers need to remember that the ADA requires all medical information about employees must be stored separately from their personnel file and must limit the access to this confidential information.

That final point is crucial. The EEOC states that employers may maintain all medical information related to COVID-19 in existing medical files – they do not need to create new COVID-19 files. These medical files would include “an employee’s statement that he has the disease or suspects he has the disease, or the employer’s notes or other documentation from questioning an employee about symptoms.”

Do You Need Legal Assistance?

If you believe your employer is violating your rights at work during this time, reach out to the attorneys of Haeggquist & Eck, LLP. We are an employee and consumer advocacy firm with nationwide renown for fighting on behalf of workers’ and consumers’ rights.

If you think you may have a valid claim within our areas of practice, contact us online or call (619) 342-8000 to request a free consultation where we can help you understand your potential next steps.

Based on currently available data from the Centers for Disease Control and Prevention (CDC), people who have serious underlying medical conditions might be at higher risk for severe illness from COVID-19. These conditions include chronic lung disease, moderate to severe asthma, serious heart conditions, immunocompromised conditions (e.g., cancer, smoking, bone marrow or organ transplants, HIV or AIDS, use of immune weakening medications, or other immune deficiencies), severe obesity, diabetes, chronic kidney disease, and/or liver disease.

What if you’re an essential worker and have to continue working despite stay-at-home orders and your underlying medical condition?

The CDC has advised that those at higher risk need to take extra precautions, including by staying home. The CDC has also recommended high risk individuals check with local public health officials. The San Diego Health Officer has advised that a “strong recommendation is made” that all person who have “a chronic underlying condition, or have a compromised immune system self-quarantine themselves at home or other suitable location.” The Orange County Health Officer’s order is in accord. Employers are expected to follow guidance from the CDC, as well as State and local government guidelines, regulations, and orders, to maintain a safe workplace.

Thus, if you have a serious health condition and your employer is nevertheless making you work during COVID-19, you may have the right to a reasonable accommodation, e.g., teleworking. If that is not an option, then you may be entitled to a temporary leave of absence. If your employer refuses to offer you such an accommodation which results in the termination of your employment, you may have a wrongful termination claim against your employer.

More specifically, despite the societal and practical needs for essential workers to report to work to ensure continuity of operations of essential functions (e.g., food, healthcare, etc.), if the workplace is objectively unsafe or unhealthy, and your employer is nevertheless forcing you to report to work, it could be in violation of the Occupational Safety and Health Administration (“OSHA”) and California’s labor laws, such as Labor Code §§6400, 6402 (“No employer shall require, or permit any employee to go or be in any employment or place of employment which is not safe and healthful.”). Your employer could also be in violation of California’s anti-discrimination laws which require employers to accommodate employees with disabilities and/or medical conditions. These laws apply even if you work for an essential business. Based on the objective evidence offered by the CDC and local public health officials, it is not safe for most individuals with serious medical conditions to report to most workplaces. As such, if you have a serious medical condition and your employer is refusing to allow you to work from home and/or to take a temporary leave of absence, you may have a legal claim.

If you feel your employer is forcing you to work in an unsafe or unhealthy workplace, contact the attorneys at Haeggquist & Eck, LLP or by calling (619) 342-8000 to learn more about your rights.

The State of California implemented several employment laws that took effect on January 1, 2020. Here are some that may impact you.

Another Step Forward For A Living Wage

This year, the California minimum wage jumped to $12 per hour for companies with 25 employees or fewer, and $13 per hour for companies with more than 25 employees. The City of San Diego’s minimum wage is now $13 per hour for all employees, regardless of the employer’s size. Note that some cities in California have minimum wages that are even higher, for example, South San Francisco at $15 per hour.

Misclassification of Employees as Independent Contractors (Assembly Bill No. 5; Labor Code §§3351 & 2750.3)

This law sets forth the test to be used for determining whether a worker is an employee or an independent contractor, the so-called ABC test, set out in Dynamex. Under this test, a worker is considered an employee rather than an independent contractor unless the hiring party demonstrates that all three of the following conditions are satisfied:

A. The worker is free from the control and direction of the hiring party;

B. The worker performs work that is outside the usual course of the hiring entity’s business; and

C. The worker is customarily engaged in an independently established business of the same nature as the work performed.

The law has seven categories of exemptions. A worker who falls within one of the exemptions is not automatically considered an independent contractor; instead, the hiring party must demonstrate that it did not control the “manner and means” of accomplishing the desired result.

Extension of Time To File a DFEH Complaint (Assembly Bill No. 9; Government Code §§12960 & 12965)

The time period to file a Complaint with the Department of Fair Employment and Housing (“DFEH”) for complaints of unlawful employment practices has been extended from one year to three years.

No Forced Arbitration as a Condition of Employment (Assembly Bill No. 51; Government Code §12953; Labor Code §432.6)

Employers may not force employees to agree to arbitration as a condition of employment or continued employment. Employers also cannot threaten, retaliate or discriminate against, or terminate any employee or applicant for employment for refusing to agree to arbitration. Note that this law does not invalidate arbitrations the employee has previously agreed to.

Prohibition of “No-Hire” Provisions (Assembly Bill No. 749; Code of Civil Procedure §1002.5)

Employers are prohibited from including a “no rehire” provision in settlement agreements with employees. The law, however, does not prohibit an agreement to end a current employment relationship.

Unpaid Leave For Organ Donation (Assembly Bill No. 1223; Government Code §19991.11; Labor Code §1510)

Employers are required to grant an employee up to 30 days of additional unpaid leave of absence for donating an organ and prohibits life, long-term care, or disability insurance policies from discriminating against an organ donor.

Discrimination in Calculating Monetary Damages Prohibited (Senate Bill No. 41; Civil Code §3361)

Calculations or estimations of past, present, or future damages for lost earnings or impaired earning capacity shall not be reduced based on race, ethnicity, or gender.

Lactation Accommodations (Senate Bill No. 142; Labor Code §§1030 – 1034)

Employers must provide a lactation room or location with certain features, and access to a sink and refrigerator in close proximity to the employee’s workspace. If the employer denies reasonable break time or adequate space to express milk, this is deemed a failure to provide a rest period in accordance with California law. Employers are prohibited from discriminating or retaliating against or terminating an employee for exercising or attempting to exercise their lactation rights.

No Discrimination Based on Natural Hairstyles (Senate Bill No. 188; Government Code §12926)

This law protects employees from discrimination based on natural hair and hairstyles associated with race. California is the first state to ban discrimination based on natural hair. California’s Fair Employment and Housing Act (“FEHA”) protects against discrimination based on certain personal characteristics, including race. This law expands the definition of “race” to include “traits historically associated with race, including, but not limited to, hair texture and protective hairstyles,” including “braids, locks, and twists.”

Sanctions For Employer’s Non-Payment of Arbitration Fees (Senate Bill No. 707; Code of Civil Procedure §§1280 and 1281.96 – 1281.99)

If an employer strategically withholds payment of arbitration fees in order to delay or impede arbitration proceedings, this law allows arbitrators and courts to impose appropriate sanctions on the employer, including terminating sanctions. The law also addresses the lack of diversity in the arbitration industry by requiring arbitration companies to report the same kind of demographic information about their arbitrators as the Judicial Council is required to report about California state court judges.

Contact Us If You Believe Your Employer Violated the Law

The attorneys at Haeggquist & Eck, LLP are experienced and dedicated professionals who are committed to protecting your rights in the workplace. If you feel that your rights may have been violated, contact our attorneys online or at (619) 342-8000 to learn more.