Lateral Position Changes Could Be Discriminatory!

Recently, the United States Supreme Court delivered a win to employees, holding that a lateral job transfer can be discriminatory under Title VII when the transfer brought some harm to the employee. The Supreme Court rejected case law requiring employees to show a “materially significant disadvantage” to the employee or meet other heightened standards demonstrating harm to the employee from the job transfer. Employers may expect a new wave of federal discrimination claims.

In the case. A female police officer argued that she was adversely harmed when her employer transferred her to another position against her wishes, even though the transfer did not decrease her pay or benefits. The plaintiff worked as a plainclothes officer in the Department’s Specialized Intelligence Division from 2008 to 2017. In 2017, the division’s new commander transferred her to another position and replaced her with a male police officer. The employee’s rank, pay, and benefits remained the same, and she continued to have a supervisory role in her new position. However, the employee no longer worked with high-ranking officials as in the past, and she also lost access to an unmarked take-home vehicle and was scheduled for weekend shifts.

The plaintiff sued under Title VII to challenge the transfer as discrimination based on her sex. The City moved for summary judgment, and the District Court granted summary judgment because she failed to show a material change in employment from an adverse employment action. The Eight Circuit affirmed the holding that she failed to show the transfer caused her a “materially significant disadvantage” because there was no “diminution to her title, salary, or benefits” and only minor changes in working conditions. 

The plaintiff argued to the Supreme Court that the text of Title VII § 703(a)(1) did not require that an employee show a “significant disadvantage” or meet a heightened harm standard to show she was discriminated against. Therefore, the Eight Circuit’s requirement of a heightened harm standard was at odds with the text of Title VII. The City argued that an employee had no claim absent significant, meaningful harm. 

The Supreme Court held that an employee challenging a job transfer under Title VII must show the transfer “brought about some harm concerning an identifiable term or condition of employment, but that harm need not be significant.” In making this ruling, the Supreme Court analyzed the language of Title VII and reasoned that the text does not require significant harm. Justice Elena Kagan, writing the Court’s opinion, held, “what the transferee does not have to show … is that the harm incurred was ‘significant,’ … or serious, or substantial, or any similar adjective suggesting that the disadvantage to the employee must exceed a heightened bar.” As such, an employee needs only to show they have been harmed in some way. The Court held that to demand “significance” is to add words to the statute Congress enacted, but not what Congress intended and remanded the case back to the Eight Circuit. 

Considering the decision, the Supreme Court has shifted the employment law landscape again. Employers must know that employees falling into a protected class may have viable discrimination claims under Title VII if they suffer harm when subjected to a lateral transfer. 

In light of this decision, employers must proactively review their policies and practices regarding lateral transfers to ensure compliance with the recent Supreme Court ruling. Some key steps employers may want to consider:

• Training and Awareness: Conduct training sessions for HR personnel and managers to ensure they understand the ruling’s implications. Emphasize the importance of fair treatment in lateral transfers and the potential for discrimination claims.
• Review Transfer Processes: Evaluate existing transfer processes to identify any potential areas of bias or discrimination. Consider implementing objective criteria for making transfer decisions to minimize the risk of discriminatory practices.
• Documentation: Thorough documentation of all transfer decisions, including the reasons for the transfer, can help defend against potential discrimination claims.

Proposed: Employers Cannot Contact Employees During “Nonworking” Hours!

California, as usual, is at the forefront of a change in the working relationship between employers and employees. The Legislatures are currently considering the first “right to disconnect” law in the United States, Assembly Bill 2751 (A.B. 2751). Under the proposed legislation, employers would be required to define employees’ nonworking hours in writing and prohibit employers from contacting workers during these designated nonworking hours, except in “emergencies” or schedule changes. Based on the current wage & hour laws, employers should not have contacted employees when they are off the clock unless they were being compensated.

However, the problem with this proposed legislation is that is full of ambiguities and questionable practical application, leaving the door open for misinterpretation and abuse. “As an example, “Emergency” is defined as “an unforeseen situation that threatens an employee, customer, or the public; disrupts or shuts down operations; or causes physical or environmental damage.” What constitutes a qualifying “unforeseen situation” or a “threat” remains unclear.  A violation requires a “pattern of violation,” requiring “three or more documented instances of violating the right to disconnect” before the employee may file a complaint with the Labor Commissioner. Even the proposed penalty for violating a worker’s “right to disconnect” is unclear. If an employer is shown to have a “pattern of violation,” A.B. 2751 would impose a “fine of not less than one hundred dollars,” but no upper limit is defined.  

The bill has generated concerns and opposition from the business community. For example, the California Chamber of Commerce raised concerns about its impact on various industries, vague communication boundaries, and emergency provisions. The bill fails to acknowledge the nuances of industries with unique scheduling needs, irregular hours, or on-call requirements, which would greatly hinder workplace flexibility and commercial responsiveness.

California already has a robust framework of laws to protect employee rights that govern the employment relationship, everything from daily overtime/double-time pay requirements, meal and rest break requirements and premium payments, controlled on-call pay, and reporting time pay, to name a few. The rationale being suggested is that “workers shouldn’t be punished for not being available 24/7 if they’re not being paid for 24 hours of work” seemingly ignores the fact that hourly workers receive overtime pay if they work over 8 hours and that a salaried worker’s compensation typically accounts for longer hours and availability outside of regular working hours. 

A.B. 2751 would unnecessarily restrict communication between employers and employees, hindering functionality in times of genuine need that do not meet the threshold for an “emergency.” Its blanket restrictions fail to account for existing labor laws, exempt employees, and the diverse needs of different industries. Effectively outlawing non-emergency communication outside of regular hours jeopardizes essential job and business functions and ignores the realities of modern work dynamics when companies strive to make the workplace more accessible and flexible, particularly with hybrid and remote work arrangements.

The proposed legislation prompts essential discussions about the intersection of technology, work culture, and employee rights. While the bill aims to protect workers from overwork and burnout, it raises serious questions about flexibility and adaptability in the modern workplace. A.B. 2751 may have been introduced to safeguard employee well-being. Still, its inherent ambiguities underscore its inadequacy in addressing the complex challenges of modern work-life balance, ultimately posing a hindrance rather than a solution to the issue of workplace connectivity and employee rights.

We will keep you posted.

Former Employee Destroyed Evidence: Case Dismissed!

Recently, the Ninth Circuit, in Jones v. Riot Hospitality Group, 2024 WL 927669 (9th Cir. Mar. 5, 2024), affirmed the dismissal of an employee’s claims against her employer and found that terminating sanctions were appropriate where the employee deleted relevant text messages and organized with her witnesses to do the same to deprive the defendant of their use during litigation.

In 2017, Plaintiff Alyssa Jones, a former waitress, sued her ex-employer, Riot Hospitality Group (“Riot”), for alleged Title VII violations and common law tort claims. During discovery, Riot obtained text messages between the employee, her friends, and her co-workers. In evaluating the messages, the company identified gaps in the text message exchanges wherein the employee suddenly stopped communicating with individuals she had been contacting daily.

Following a subpoena issued by Riot’s counsel, a third-party vendor produced a spreadsheet that showed the employee had deleted relevant messages between her and her co-workers. The district court ordered that the employee produce those text messages, but the employee failed to do so. As a result, the district court allowed Riot to subpoena the employee’s phones and three of her witnesses to a forensic specialist, who would extract messages with specific search terms. The forensic specialist sent the text messages to the employee and her counsel, who failed to deliver them to Riot despite multiple court orders. After the court ordered the forensic specialist to send the messages to Riot, the court assessed a nearly $70,000 discovery sanction in fees and costs against the employee and her counsel.

Upon receipt of the messages from the forensic specialist, Riot moved for terminating sanctions under Federal Rule of Civil Procedure 37(e)(2), which provides that where electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to protect it. It cannot be restored or replaced through additional discovery; the court may dismiss the action upon finding that the party acted with the intent to deprive another party of the information’s use in litigation. In determining that the employee had intentionally deleted her text messages to deprive Riot of their use in litigation and acting in concert with her witnesses to do the same, the district court dismissed the employee’s case.

On appeal, the employee argued that she did not violate FRCP 37(e) and that the district court abused its discretion in dismissing her case under FRCP 37(e)(2) because her conduct was not willful or prejudicial to Riot.

The Ninth Circuit disagreed with the employee, noting that “a district court need only find that the Rule 37(e) prerequisites are met, the spoliating party acted with the intent required under Rule 37(e)(2), and lesser sanctions are insufficient to address the loss of the ESI.” The Court explained that because “intent can rarely be shown directly, a district court may consider circumstantial evidence in determining whether a party acted with the intent required for Rule 37(e)(2) sanctions,” including timing of destruction, affirmative measures taken to delete evidence, and selective preservation.

The Ninth Circuit’s upholding of the district court’s dismissal of the employee’s case sends a strong message to litigants — that deleting relevant evidence such as text messages could result in sanctions or dismissal. Plaintiffs who take affirmative steps to deprive defendants of relevant evidence could be in for a costly and terminating outcome.

This was a good result for the employer. However, employers must remember that they are under the same Federal Rules of Civil Procedure when they receive a letter from an attorney on behalf of a current or former employee. The red flag goes up. Employers or managers cannot destroy evidence from the employee file or other places, such as text messages, as shown in the above case.

Paid Time for Security Checks!

Last week, the California Supreme Court issued another decision impacting California’s wage and hour laws. The opinion in Huerta v. CSI Electrical Contractors Inc. answered three questions in a wage and hour class action about the scope of the term “hours worked.”

This case addressed Wage Order No. 16. Although Wage Order No.16 governs the construction, drilling, logging, and mining industries, the interpretation of the term “hours worked” will likely be defined similarly for Wage Orders governing other industries.

The facts stated employees in the morning entered a Security Gate where guards scanned each worker’s badge (and sometimes peered inside vehicles and truck beds), then spent up to 10 to 15 minutes driving from the Security Gate to the parking lot where the employees parked for work. The employees also had to wait in line at the Security Gate for a security check of vehicles at the end of the day. The security check sometimes included a visual inspection of the vehicle and truck bed to look for stolen tools or endangered species that were present at the location. While driving from the Security Gate to the employee parking lot, employees had to follow specific rules designed to protect the endangered species on site, including using only permitted access roads, following slow speed limits, and not honking horns or playing music that could be heard outside their vehicles.  

With that background, three questions emerged for the high court to address.

The first is, “Is time spent on an employer’s premises in a personal vehicle waiting to scan an identification badge, have security guards peer into the vehicle, and then exit a Security Gate compensable as ‘hours worked’ within the meaning of . . . Wage Order No. 16?”  

The Court decided when an employee is required to spend time on the employer’s premises awaiting and undergoing an employer-mandated exit security procedure that includes the employer’s visual inspection of the employee’s vehicle, the time is compensable as “hours worked.” The Court found that because the employee was subject to the control of the employer and had to perform “specific and supervised tasks” (presenting a badge and undergoing the security check) when checking out at the Security Gate at the end of the workday, that is “time worked” for which the employee must be compensated. The Court recognized that the facts of this case presented more than the time it would take for an employee to scan a security badge to enter or exit a parking lot. The Court, in its analysis, focused on the exit procedure, but the same analysis would apply to entry procedures that require employees to undergo security checks.

 In addition, the Court implied that the mere scanning of a badge to facilitate the opening of a security gate would not be compensable time. It also reiterated that California’s wage and hour statutes do not incorporate a de minimis doctrine (the concept of whether a few seconds is compensable).

The second question was whether the time spent on the employer’s premises in a personal vehicle, driving between the Security Gate and the employee parking lots, while subject to certain rules from the employer, was compensable as ‘hours worked’ or as ‘employer-mandated travel’ within the meaning of Wage Order No. 16.

The Court made it clear that the time traveling between the Security Gate and the employee parking lots is compensable as “employer-mandated travel” under Wage Order No. 16, section 5(A) if the Security Gate is the first location where the employee’s presence is required for an employment-related reason other than the practical necessity of accessing the work site.  The Court provided a few examples of when an employee’s presence at an initial location is required, such as to pick up work supplies, receive work orders or other directives, or perform work before traveling to a second job site.  

The time traveling from the Security Gate to the parking lot is not compensable as “hours worked” because an employer’s imposition of ordinary workplace rules on employees while driving to the worksite in a personal vehicle does not create the requisite employer control.  This distinction is important because the term “employer-mandated travel” is unique to Wage Order No. 16 and does not require that the employee be subject to the employer’s control to be compensable. Instead, the travel need only occurred at the employer’s direction after the employee’s arrival at the “first location” where the employer required the employee’s presence. The Court specified that the Security Gate could be the “first location” the employer required the employee’s presence if it was “required for an employment-related reason other than the practical necessity of reaching the worksite.” However, the Court did not determine whether the Security Gate was the “first location” because the evidence submitted conflicted and was an issue for the trier of fact to decide.

The final question was whether the time spent on the employer’s premises, when workers are prohibited from leaving but not required to engage in employer-mandated activities, is compensable as ‘hours worked’ within the meaning of Wage Order No. 16 or California Labor Code Section 1194 when that time was designated as an unpaid ‘meal period’ under a qualifying collective bargaining agreement.

The opined when an employee is covered by a collective bargaining agreement that complies with Labor Code section 512, subdivision (e) and Wage Order No. 16, section 10(E), and that agreement provides for an “unpaid meal period,” that time is nonetheless compensable under the wage order as “hours worked” if the employer prohibits the employee from leaving the employer’s premises or a designated area during the meal period and if this prohibition prevents the employee from engaging in otherwise feasible personal activities. Under Labor Code section 1194, an employee could take action to recover unpaid wages for that time.

Based on the above decision, California employers whose employees undergo security checks or other requirements to enter and exit the workplace should carefully examine whether the time spent may be deemed compensable time for which the employee should be paid. Employees not permitted to leave the premises for meal breaks should be compensated for the time spent during an on-premises meal break, and well-tailored on-duty meal period agreements should be put in place when the facts warrant.  

Good News! Joint Employer Rule has Been Struck Down!

By way of reminder, in October 2023, the National Labor Relations Board (NLRB) issued its new Final Rule addressing and expanding the proper standard for determining joint employment status under the National Labor Relations Act (NLRA). This was an important rule with questions like:

1. When can employees from a temporary staffing agency be included in the same bargaining unit as regular employees?
2. When can employees for two franchisees be considered as part of the same bargaining unit?

The Final Rule adopted in October made it much easier for the NLRB to find joint employment. Under the highly controversial standard outlined in the new Final Rule, two entities may be considered joint employers of a group of employees if each entity can share or codetermine one or more of the employee’s essential terms and conditions of employment, which are defined exclusively as:

1. Wages, benefits, and other compensation;
2. Hours of work and scheduling;
3. The assignment of duties to be performed;
4. The supervision of the performance of duties;
5. Work rules and directions governing the manner, means, and methods of the performance of duties and the grounds for discipline;
6. The tenure of employment, including hiring and discharge; and
7. Working conditions related to the safety and health of employees.

By allowing for a finding of joint employment based merely on a finding that two entities share control over one of these seven terms and conditions of employment, joint employment will not be difficult to find in many situations. This Final Rule replaced the prior Trump NLRB joint employment standard that required that a company be found to have exercised “substantial direct and immediate control” over the most important elements of the worker’s job to be considered a joint employer.  

However, recently, Judge J. Campbell Barker, United States District Judge for the Eastern District of Texas, appointed by President Trump in 2019, issued his summary judgment opinion in a case filed by the United States Chamber of Commerce striking down the Final Rule.  

Judge Barker found that the Final Rule “would treat virtually every entity that contracts for labor as a joint employer because virtually every contract for third-party labor has terms that impact, at least indirectly . . . essential terms and conditions of employment.” While the Texas district court fell short of holding that the Final Rule was arbitrary and capricious, it held that the Final Rule failed to “resolve ambiguities in a way making the rule more predictable than common law adjudication.  . . .[and] will likely promote labor strife rather than peace by forcing an underdefined category of entities to take a seat at a bargaining table and negotiate over a multitude of influences that may otherwise be presented (and resolved) only through the invisible hand of the marketplace.” Judge Barker found that the Final Rule is unlawful due to its “sweep beyond common law limits” and issued an injunction prohibiting the NLRB from enforcing it.  

This is a big victory for employers, as many were fearful of the confusion and management challenges of dealing with organizing drives involving joint employers and the complexity of multi-employer bargaining that would likely ensue with such a broad definition of joint employment.  

For now, absent any appeal, unions, and employers can continue to rely on the existing NLRB joint employment standard, which requires that multiple employers exercise direct and immediate control of the essential terms and conditions of employment (wages, benefits, hours, hiring, discipline, firing, supervision) before joint employment can be established. In addition, employers that use temporary labor or staffing firms, staffing agencies, and franchisors should all analyze their practices and review their agreements to look at how they currently address control over terms and conditions of employment, and consider whether to modify their practices and/or renegotiate their agreements, to put themselves in the best position of avoiding being labeled as a “joint employer.” 

Clarifying the New Paid Sick Leave Law for Part-Time Employees!

There appears to be some confusion with the new California paid sick leave law that became effective January 1, 2024. The new law requires employers to provide employees at least forty (40) hours or five (5) days of Paid Sick Leave (PSL) per year, up from 24 hours/3 days in previous years.

The new and revised law still requires employers who use an accrual method of PSL to apply an accrual rate of no less than one hour of PSL for every 30 hours worked. However, the revised law states that the employer satisfies those accrual requirements only by providing the employee no less than 24 hours of PSL by the 120th day of employment/120th day of the year or 12-month period and no less than 40 hours by the 200th day of employment/200th day of the year or 12-month period. 

The issue is the way that the language of the revised law was written. It has created confusion, specifically as to whether part-time employees working less than 40 hours per week were required to be provided 24 hours by the 120th day and 40 hours by the 200th day or whether this requirement only applied to full-time employees. While a full-time employee working a 40-hour workweek would naturally accrue the requisite PSL based on the 30:1 accrual ratio, the same could not be said for employees working less than 40-hour workweeks, so this was a very important unanswered question. 

In response, earlier this month, California’s Division of Labor Standards Enforcement (DLSE) issued frequently asked questions addressing this concern and, for a rare change, provided an employer favorable opinion, explaining, 

“If an employer is using the 1 hour of paid sick leave accrued for 30 hours worked[…], then the employer does not have to provide 24 hours or 3 days by the 120th day of the year and 40 hours or 5 days by the 200th day. The requirements to provide the minimum amounts by the 120th day and the 200th day of the year are set up as a measure for employers who use other accrual methods so that the plans meet certain minimums. The measure assumes full-time employment.”

Therefore, an employer that uses a 30:1 ratio for a part-time employee complies with California’s new PSL law, even if the employee does not earn 24 hours of PSL by the 120th day of employment/120th day of the year or 12-month period, or 40 hours of PSL by the 200th day.

Hope this clarification helps!

New Notices & Pamphlets for Employees!

There have been several recent changes to certain notices and pamphlets that California employers must provide new hires. 

California Labor Code section 2810.5 requires that employers provide nonexempt employees with written notice regarding their wages, including pay rates, overtime rates, and designated paydays. The notice must be provided at the time of hire and within seven days of a change to the information outlined in the notice unless the changes are reflected in the employee’s paystub for the following pay period.

In January 2024, AB 636 amended section 2810.5 to require employers to provide employees with information regarding any “state or federal emergency or disaster declaration applicable to the county or counties where the employee will work issued within 30 days before the employee’s first day of employment, and that may affect their health and safety during employment.” The notice must also reflect the increase in mandatory paid sick leave to forty hours or five days, whichever is greater.

The updated Labor Code 2810.5 Notice can be found at http://www.dir/ca.gov/dlse/LC_2810.5_Notice.pdf

In February 2024, the EDD updated its “For Your Benefit” pamphlet. This pamphlet must be provided at the time of hire and discharge of employees. The pamphlet provides information regarding unemployment insurance, disability insurance, paid family leave, and workforce services, including when and how to apply for benefits upon termination.

 The EDD’s updated pamphlet can be found at https:edd.ca.gov/siteassets/files/pdf_pub_ctr/de2320.pdf. 

Also in February 2024, the California Department of Industrial Relations Division of Workers Compensation (DIR) updated its “Time of Hire” pamphlet, which provides employees with information about the state’s workers’ compensation, benefits, how to file a claim, and other information related to medical care.

The DIR’s updated pamphlet can be found at http://www.dir/ca.gov/DWCPamphlets/TimeOfHirePamphlet.pdf. 

Work From Home Pitfalls and Reminders!

The issue of remote work is still looming large for employers even though the health risks of the pandemic have subsided. Some employers are still offering full remote work, while others offer a hybrid to remain competitive and retain employees. Some workers regularly request and expect at least a partial remote work schedule. Allowing any remote work by non-exempt employees has its risks. The following represents some of the pitfalls that California employers should consider when thinking of or managing remote workers.

Keep in mind, that employers are still responsible for complying with all of the same wage and hour laws for non-exempt workers, whether they are remote or not. The hot spots related to these laws and remote workers are claims for off-the-clock work/unpaid wages, meal and rest break violations, and unreimbursed expenses.

The first consideration is timekeeping. To manage these issues, employers should consider disseminating a timekeeping policy for remote workers and perhaps implement tracking software to monitor work activity. Accurately reporting all time work is essential as well as a strict prohibition of off-the-clock work. While tracking software is very helpful, a requirement that remote employees confirm in writing that they have accurately reported all of their time worked will go a long way in protecting the company and defending against violation claims if they arise in the future. Additionally, employers should strictly prohibit emailing, texting, and phone calls when not clocked in and require that all supervisors and upper management refrain from contacting non-exempt employees after hours. This should also be a policy for after-hours for employees who are not a part of the work-from-home group.  

Second, and equally important, is to remember remote workers are entitled to compliant meal and rest breaks even when working from home. Additionally, the start and stop times of meal breaks should be accurately recorded to the minute – no rounding. To avoid unintended interruptions to meal and rest breaks of remote workers who may believe they are being helpful by responding to calls and emails even though they are on breaks, employers should distribute a meal and rest break policy for remote workers prohibiting any work while on breaks. Employers should also consider setting a break schedule so that supervisors know when workers are unavailable to help eliminate potential interruptions.

Third, California Labor Code Section 2802 requires employers to reimburse employees for “all necessary business expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties.” For remote workers, this may include internet usage, computer equipment, and cell phone usage. Even with unlimited cell phone plans, courts have held that employers must pay some reasonable percentage of the employee’s cell phone bill if used for work. The same reasoning applies to internet usage Employers may believe they have provided all necessary equipment to remote workers that are necessary to perform their duties. But there are still potential expenses that could be recovered for office supplies, furniture, as well as traveling to and from the company’s place of business. Keep in mind, that once an employee is fully remote, that becomes the employee’s “regular work site” for purposes of evaluating and reimbursement of travel time and mileage.

To manage the risks associated with business expense claims of remote workers, employers should create a business expense reimbursement policy and provide employees with the necessary supplies and equipment needed to perform their job remotely as well as provide a monthly stipend for incidental expenses like cell phone or internet, if required to be used for business reasons.

In addition, employees should still be required to submit a reimbursement request for any additional expenses incurred as well as have a mechanism to address, with proper documentation, amounts that he or she does not believe are being covered by a monthly stipend.

Finally, employees should be required to obtain approval in advance before purchasing any larger or more expensive items to determine if such expenditures are reasonably necessary before seeking reimbursement.

The Latest! Gender-Neutral Dress Codes!

The times are changing and with that, there are challenges employers will have to address to avoid potential litigation. The new emerging issue appears to involve non-discriminatory, gender-neutral dress codes.

Here are 7 suggestive tips to draft a non-discriminatory, gender-neutral dress code for your workplace:

1./ Focus on professionalism or safety: Instead of dictating specific clothing items, emphasize the importance of dressing professionally and appropriately for the workplace. For example, “everyone must wear business attire,” “any hair that falls more than two inches below the chin must be tied back,” or “no loose-fitting clothing (safety issue).”

2./ Avoid gendered language: Use language that is inclusive and does not specify gender. For example, instead of saying “Men should wear suits, and women should wear skirts,” you can say “Employees should wear professional attire such as suits, slacks, blouses, or dresses.”

3/ Allow for individual expression: Acknowledge that employees may have different styles and preferences. Encourage them to express their personal style while maintaining professionalism.

4./ Provide examples: Offer examples of acceptable attire to help employees understand what is appropriate. This can include images or descriptions of various clothing options.

5./ Address grooming and hygiene: Include guidelines on grooming and hygiene that apply to all employees, regardless of gender. This can include expectations for cleanliness, neatness, and appropriate grooming practices.

6./ Be open to feedback: Encourage employees to provide feedback on the dress code and be willing to make adjustments as needed to ensure inclusivity.

7./ Train everyone and enforce consistently: Train all employees on what your dress means and how it is to be followed; enforce the dress code consistently across all employees to ensure fairness and prevent any perceptions of bias or discrimination.

By following these guidelines, you can “hopefully” create a gender-neutral dress code that avoids any discrimination allegations.

Note: The word “professionalism” can be subjective from one manager to the next. Employees who want to push their agenda may try to argue that they believe they are dressing professionally. Ultimately the manager makes the decision possibly along with HR. Keep in mind the times are changing.

Privacy Compliance is Now in Effect!

The California Privacy Protection Agency’s (“Agency”) ability to enforce its regulations has been a hot topic over the last year and the most recent twist puts the Agency back into the enforcement business immediately.

Background

California’s voters enacted the California Privacy Rights Act (the “Act”) in 2020 which called for regulations to be issued and that businesses would have time to adapt to the regulations with enforcement of regulations by July 1, 2023. However, the Agency took a long time to adopt regulations, doing so on March 29, 2023—just a few months before enforcement was set to take place. At that point, the California Chamber of Commerce swiftly and successfully enjoined the Agency from enforcing its regulations for another year.

On February 9, 2024, the Agency filed a petition to the Third District Court of Appeal to restore the Agency’s ability to enforce these new regulations. The Court agreed to do so.

While the Agency’s ability to enforce regulations is now restored, the California Chamber of Commerce did a good job of stalling implementation for almost a year. For employers that were paying attention, it allowed covered employers almost a full year to prepare for compliance with the revised regulations.

With this recent decision, the revised regulations, adopted in March 2023, are now in effect and the Agency may begin enforcement immediately. All covered employers must ensure that they comply with these new regulations.

Reminder

Covered Employers

While not every employer is required to comply, the CPRA requires compliance for many employers. As a reminder, a covered employer is an organization that:

• Maintains annual gross revenues over $25 million in the preceding calendar year;
• Buys, sells, or shares personal information of 100,000 or more California consumers or households; or 
• Derives 50 percent or more of its annual revenue from selling or sharing California consumers’ personal information.

Compliance Tips with the CPRA

• Be Prepared: Get your team ready to respond to requests from employees about their personal information by conducting training and developing processes.
• Give Notice: Give Notice to all Applicants/Employees before or at the time you collect their personal information. The Notice’s goal is to inform employees and applicants of what information is collected, how it is used, and the rights that they have.
• Update Your Handbook: While you may already be updating your handbook to account for 2024’s new California labor laws, make sure that you have a compliant privacy policy in place that belongs in your employee handbook. 
• Map Out Data: Full compliance requires employers to track where personal information data “lives”. Employers need to have their processes in place for data mapping.