In Episode 157 of The Workplace podcast, CalChamber employment law expert Matthew Roberts and CalChamber HR Adviser Ellen Savage discuss the issues employers are asking about most often on the CalChamber Labor Law Helpline, including: the new California Department of Public Health definition of “close contact” regarding COVID-19 isolation protocols; webcam usage concerns; remote work-related expenses; retention bonuses; and more.
‘Close Contact’ Definition
COVID-19 remains a hot topic of discussion and one of the most frequently asked questions has to do with the revised definition of “close contact,” Roberts says.
The California Division of Occupational Safety and Health (Cal/OSHA) recently updated its COVID-19 Frequently Asked Questions to reflect changes that the California Department of Public Health (CDPH) made to its definition of “close contact,” Savage explains.
In June, CDPH changed its previous definition, and now “close contact” is someone who shares the same airspace (such as a home, clinic, waiting room, airplane) for a cumulative total of 15 minutes or more over a 24-hour period during an infected person’s infectious period. Cal/OSHA’s FAQ stated that the “airspace” will have to be analyzed on a case-by-case basis.
When considering the “airspace,” employers should consider the proximity employees had with one another, and how long they were together. If two employees were on opposite sides of a big warehouse all day, they are probably not a close contact. But if they sat together in the break room during their lunch, and chatted about last night’s episode of Ted Lasso, then they are probably close contacts, Savage says.
Another factor to consider, Roberts adds, is how ventilated a room is, because obviously, the more ventilated and the larger the space is, the less likely someone would be considered a close contact.
Roberts recommends that an employer contact legal counsel if they can’t decide whether employees have been in “close contact.”
Remote Work: Webcam Concerns
The COVID-19 pandemic has changed the nature of work and many employees are spending some or all of their time working remotely now, Roberts says. One interesting issue that has come up is whether employers can require workers to be on a webcam throughout the course of the day.
Although there are plenty of privacy issues going on with remote work, when it comes to webcams, employers are looking at some serious privacy issues that probably go way beyond what we’re used to in the workplace, Savage says.
In California, privacy rules are stronger than in much of the country. One question that has to be considered is whether the webcam will be used on a work-issued laptop/device or used on an employee-owned device.
“Obviously, I have a much greater expectation of privacy on my own computer than on the company laptop. My computer’s got my private emails and texts, my banking information, probably medical records of some sort, that I have a reasonable expectation of privacy in,” Savage says.
Another question to consider is whether an employee will be notified that they are being monitored. Savage points out that employers must consider that many remote employees are working in private spaces, such as their bedrooms, and if the employer is secretly filming everything that the employee does on their work laptop while in their bedroom, then it’s a lawsuit waiting to happen.
Remote Work Expenses
California law is clear about what are necessary expenses versus what expenses an employee has simply because they prefer to work at home in their bunny slippers, Savage says. If an employer requires an employee to work from home, then the employer will likely need to pay for some reasonable expenses, such as internet, phone, and other types of necessary equipment and technology.
Expenses such as toilet paper, heating and air conditioning, and others must be evaluated to consider what is truly necessary and whether the employee is working from home because it’s what they prefer or if they are being required to work remotely.
Retention Bonuses, Salary Increases
An issue employers are still concerned with is workforce retention, Roberts says. In particular, employers have been asking about retention bonuses or substantial salary increases to get employees to stay with the company.
There are many issues that employers will need to consider, such as equal pay and discrimination, but there also are wage and hour concerns, Savage says.
For example, retention bonuses and hiring bonuses are considered nondiscretionary bonuses. So, the employer will need to calculate the bonus amount back into the employee’s regular rate of pay. Assuming the employee is nonexempt, the employer will have to calculate that amount into the employee’s overtime for whatever period that bonus is deemed to cover, and that amount also will need to be calculated into meal and rest penalties, sick pay and COVID-19 sick pay.
In addition to these wage and hour components, which are very real and are a very real trap for employers, the employer will also need to justify providing compensation to one employee within a class and not to others, Roberts points out. Giving one employee a retention bonus could create a pay disparity with another employee who doesn’t receive that retention bonus and is doing the same or substantially similar work as the first employee.
Roberts explains that pay disparities may exist, but the employer will need to be able to justify it with some bona fide factor, a legitimate business reason for which that pay disparity exists and that is not based upon sex, gender or race.
Hiring Minors
In California, all minors need to have a work permit year-round, even if it’s during summer break and the minor is out of school, Savage explains. If the person is 18 years old or has graduated from high school, then a permit is not needed. Minors are allowed to work only for a limited number of hours per day, depending on how old the minor is.
She further explains that per federal law, no one under 14 can work except in extremely limited circumstances, such as working on their parents’ farm, making Christmas wreaths, occasional babysitting or lawnmowing.
A free online booklet from the Labor Commissioner is available, containing comprehensive information on child labor laws; school attendance; wage, hour and age requirements; restrictions; employer requirements and work permits.
Real Workplace Situations
HR professionals also call the Helpline with unique real-life scenarios.
Recently, an employer called because they were accommodating the domestic violence issues an employee was going through and they were providing additional security at work and giving her time off to get temporary restraining orders, Savage says. The employer called the Helpline because the employee shipped a gun to herself to the company mailroom.
The employer had a very clear policy in their employee handbook that no guns or other weapons were allowed in the workplace. Because being a victim of domestic violence is not enough to override these rules, the employer could discipline and even terminate the employee for violating such an important safety rule.
Another employer called the Helpline because an employee was terminated but failed to return her boss’ property. The employee had been tasked with taking her boss’ dress shirts (which allegedly were worth about $1,600) to the dry cleaners, but when she got fired, she never gave the shirts back. The HR director called to asked whether the cost of the shirts could be deducted from the employee’s final paycheck, Savage says.
All the employee would have to do in this case, Savage says, is tell the Labor Commissioner that her final check was withheld and that she didn’t steal her boss’ shirts; then the employer would be on the hook for all kinds of penalties.
The best practice here is, unless you are certain that you’ve got ground to stand on for deductions from final pay, just don’t do it, Roberts warns.
“It’s never worth it,” he says.
Another issue that has been asked frequently on the Helpline concerns restroom usage and gender identity.
In California, Savage explains, employees are allowed to use the restroom that aligns with their gender identity.
“We cannot say to employees, ‘Well, since you’re transitioning, or since you’re transgender, you’ve got to use this little single-stall restroom over here, rather than the main bathroom.’ It’s just not an option,” she says.
These rules, however, don’t change health and safety rules, Roberts adds. If someone is using a bathroom, regardless of their gender identity, and they’re creating a health or safety issue within the restroom, then it’s something that can be regulated and can be discussed with the employee.
