Caution: contents may be hot – What are the rules for heat illness protection?

Q.     Pheww!!  I just saw the seven day forecast and there is no relief from the heat in sight!  What do I, as an employer, need to do to keep my employees’ temperatures and my litigation risks down during this heat wave?

A.     Because of the extensive history of heat related deaths during our Central Valley summers, particularly in the agricultural industry, California has enacted strenuous regulations to ensure employees are kept safe from the heat. Known as the Cal/OSHA Heat Illness Prevention Standard, these regulations apply to all outdoor places of employment, while certain industries, including agriculture, construction, landscaping, oil/gas extraction, and transportation, are subject to additional requirements for “high heat procedures.”  (See 8 Cal. Code of Regs. § 3395.)

Pursuant to the Heat Illness Prevention Standard, shade is required to be present when the temperature exceeds 80 degrees Fahrenheit.  The employer must have one or more areas with shade that can accommodate at least the number of employees on a break at any given time so that they can sit fully shaded.  These shaded areas must either be open to the air or provided with ventilation or cooling.  The shaded areas must be located as close as practicable to the areas where employees are working.  You must not only allow, but encourage your employees to take “cool-down” breaks for no less than 5 minutes as they feel the need.  (See 8 Cal. Code of Regs. § 3395 (d).)

When the temperature exceeds 95 degrees, which is fairly common during our Central Valley summers, additional procedures are required.  (See 8 Cal. Code of Regs. § 3395(e).)  To that end, you must ensure that a communication system is set up, such as providing each employee with a cell phone, so that employees at the work site can contact a supervisor when necessary.  You must also observe employees for signs of heat illness and remind employees throughout the work shift to drink plenty of water.  You must also designate one or more employees on each site as authorized to call for medical services.  Also, you must ensure that your employees take a minimum ten minute net preventative cool-down rest period every two hours.

Additionally, if you have a new employee, you must monitor him or her very closely for the first 14 days of his or her employment, unless he or she has previously done similar outdoor work for at least 10 of the past 30 days for 4 or more hours per day.  (See 8 Cal. Code of Regs. § 3395(g).)  All employees must be trained on the risk and symptoms of heat illness, the employer’s procedures for complying with the Heat Illness Prevention Standard, the employer’s procedures for contacting medical services, and the importance of rest and water.  (See 8 Cal. Code of Regs. § 3395(h).)  You must have your company’s Heat Illness Prevention Plan available in English and Spanish at an employee’s request.

As the Central Valley heats up, so does your risk of liability.  Protect yourself with nothing less than 60 SPF and follow these procedures.  And, as always, contact your  employment law attorneys with any questions – don’t let their pasty computer tans fool you – they know how to deal with the heat.

This Legal Update / Bulletin is for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. The hypothetical question is posed to illustrate a point and does not contemplate all potential legal considerations This update should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

Can an employee be fired for lying about his or her race? Is racial identity a legally recognized protected class? Should an employer treat all lies the same?

Q.     Over the course of the last two weeks there have been numerous stories written about Rachel Dolezal, the NAACP leader who claims that she is African American while her family claims that she is Caucasian.  The reasons why this apparent dispute is a national story are, at least, twofold:  first, Ms. Dolezal is an activist and (until recently) the head of her local NAACP; second, Ms. Dolezal, in response to the criticism, has stated that she “identifies” as black.  The first issue seems to suggest that some feel an effective advocate for African American issues must be African American – or at least honest about his or her experience and background.  As for the second issue, a person identifying as something other than that person’s physical biology has been an increasingly popular topic in recent national dialogue, particularly in the context of transgender issues. This new paradigm of “identity” is likely to be credited, in part, to former gold medalist and reality T.V. star Bruce/Caitlyn Jenner, who recently made it public that she identifies as female.  While these headlines are grabbing national attention, for employers, these conversations may pose real issues beyond the pages of news websites and talk radio.  Can an employee be fired for lying about his or her race?  Is racial identity a legally recognized protected class?

A.     Although the ideas of racial and gender identity are fairly new to many, and the law generally takes some time to catch up to these types of social issues, the existing laws do provide some guidance on how to approach workplace issues regarding “identity.”  Based on the plain reading of these existing statutes, the answer to both of the above questions is likely – no.

Can an employee be fired for lying about his or her race? Both Title VII (Federal – Civil Rights Act) and FEHA (State – Fair Employment and Housing Act) generally prohibit employment decisions based on any protected class, which includes race and color.  Both Federal and State discrimination laws also protect those that are perceived to fall within a protected category or are associated with a protected category.  Being a liar is certainly not a protected class and an employer could surely take an adverse employment action based on lies about job qualifications. Still, it seems unlikely that an employer could make an employment decision based on an employee’s misrepresentation where the subject matter of the misrepresentation should not have been a consideration in the first place (such as race).  Therefore, it is likely that an employee could not be fired because he or she lied about his or her race.

Is racial identity a legally protected class? California has a fairly long list of protected classes.  Gender identity was specifically added to the list in 2014, but, to date, racial identity has not been.  That said, conceptually it is difficult to separate “racial identity” from “race,” which is already protected.  If somebody’s racial identity is different from that person’s actual race, then it would seem that any employment decision based on gender identity would either be based on the race with which the employee identifies or the employee’s biological race – which in either event would be based on race, and thus, seemingly unlawful. Accordingly, while racial identity is not a protected class, it is likely of no significance because ultimately it would boil down to just race.

In any event, racial identity is a new term that will need to be monitored.  As noted, the existing laws protect against discrimination based on race – but if somebody can simply choose their race in order to manufacturer a discrimination lawsuit, there could be a profound and unintended impact on the nature of all race and discrimination lawsuits.

Finally, these types of news stories (e.g. Dolezal and Jenner) may have another unintended effect in the workplace. Some employees may have strong feelings about race and gender identity and openly discuss them.  As such, it is conceivable that employees that disagree and/or are offended with another employee’s strong feelings about race or gender could result in an employment lawsuit for a hostile work environment.

Undoubtedly, from a legal perspective these issues are going to be nuanced, fact specific, and legally complicated.  As such, employers will want to stay advised of legal developments and take any workplace issue and/or conversation regarding race, sex, or “identity” seriously.

This Legal Update / Bulletin is for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. The hypothetical question is posed to illustrate a point and does not contemplate all potential legal considerations This update should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

What do employers need to know before July 1, 2015 about the California Paid Sick Leave Act ?

Q.    I have a string around my finger.  I think I tied it to remind me about something happening in July.  (California Paid Sick Leave Act)

A.     Although the law went into effect this past January, on July 1, 2015 the main components of the Paid Sick Leave law will go into effect.  Like most employers, you may need a primer on the law, and you may need to change your employee handbook (if you have not done so already) to reflect the new change.  In short, the law provides twenty-four hours, or three days, of paid sick leave (“PSL”).  July 1, 2015 is a critical date.  Employees will be eligible to start accruing PSL on that date.

Employees start accruing leave on July 1,2015, or their commencement of employment, whichever is later, but will not be able to use any leave until they have worked at least 90 days for that employer.

The law is actually quite confusing and there is some varying commentary, but there are still penalties if employers fail to comply. For example:

  • Failure to post requirement is $100 per offense
  • Withholding sick leave requires the employer to pay the value of the sick day times three or $250, whichever is greater , but not to exceed $4,000
  • Failure to provide employee written notice each time wages are paid is $50, not to exceed $4,000.

If the Labor Commissioner is required to investigate, then the employer may be required to pay $50 for each day a violation occurs or continues for each employee.

This Legal Update / Bulletin is for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. The hypothetical question is posed to illustrate a point and does not contemplate all potential legal considerations This update should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

Could a Victoria’s Secret model sue her employer because her religious beliefs require modesty?

Q.     Could a Victoria’s Secret model sue her employer because her religious beliefs require modesty?  Just ask clothing retailer Abercrombie & Fitch.  What does the new Supreme Court ruling mean for employers?  Is the Supreme Court the new fashion police?

A.     Most likely you will still need to continue to divert the eyes of your adolescent boys when walking past the Victoria’s Secret stores at the mall.  That makes sense because hiring a model to don specific clothing actually requires the model to wear the specific clothing – thus, making it an essential function of the job.  That said, a new Supreme Court ruling provides some concerns for employers with strict dress codes – even those in the fashion industry.

In 2008, Samantha Elauf (“Elauf”) was denied a job with Abercrombie & Fitch (“Abercrombie”) because her headscarf violated Abercrombie’s dress code.  The Equal Employment Opportunity Commission (the “EEOC”) sued on behalf of Elauf, claiming that Abercrombie failed to provide Elauf with a religious accommodation.  Although the EEOC initially prevailed and obtained an award of $20,000.00, on appeal the 10th Circuit Court of Appeals reversed the decision, holding that Elauf had never asked Abercrombie for a religious accommodation.

On Monday, the United States Supreme Court reversed the 10th Circuit’s decision.  Although Abercrombie had argued that Elauf should have informed Abercrombie that a religious exemption might be needed, the Supreme Court ruled that if an applicant actually requires an accommodation for his or her religious practice and the employer’s desire to avoid the accommodation is a motivating factor regarding its employment decision, the employer is in violation of Title VII.  This is true even if the employer does not confirm the need for the accommodation with the employee. In this case, although Abercrombie only had suspicion that Elauf was wearing a headscarf for religious reasons, the Court found that Abercrombie could not make an employment decision based on this fact.

The need for religious accommodation may arise where an individual’s (employee or applicant) religious beliefs, observances, or practices conflict with a specific task or requirement of the position or an application process.  An accommodation may relate to scheduling, dress and grooming, or religious expression in the workplace.  An accommodation that segregates the individual from other employees or the public is unacceptable.  If the accommodation does not pose an undue hardship, the employer must grant the accommodation.  An accommodation may cause an undue hardship if it is costly, compromises workplace safety, decreases workplace efficiency, infringes on the rights of other employees, or requires other employees to do more than their share of potentially hazardous or burdensome work.  Undue hardship may also be shown if the accommodation violates the terms of a collective bargaining agreement or job rights established through a seniority system. Undue hardship based on cost requires that the employer show more than a minimal cost to the business. The hardship must be genuine and cannot be merely speculative.

Although the Supreme Court Justices will not be taking over E’s Live from the Red Carpet anytime soon, they did just provide another hurdle for employers to jump through when hiring or disciplining employees. For now, black robes appear to be safe.

This Legal Update / Bulletin is for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. The hypothetical question is posed to illustrate a point and does not contemplate all potential legal considerations This update should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.