by NICOLE A. Nguyen
COVID-19 has dramatically changed the personal and professional landscape. In adjusting to the “new normal,” employees will want to ensure that they are receiving their lawful rights and benefits. While employment law is fact-specific, it’s a general proposition that employees can’t waive their rights to be paid fairly and to be protected from illegal treatment. Below are seven common illegal situations.
1. When employers change employees’ duties, it may result in significant overtime wages.
COVID-19 has resulted in smaller workforces and shared duties. These changes have an important consequence: if an employee spends more than 50% of her working time performing non-exempt duties, she is entitled to overtime. This is true even if she is also performing managerial duties or has an important title. Her hourly rate will be calculated using her annual salary, which can cause very high overtime calculations.
Misclassification occurs because employees wear different hats. Even if employers don’t know what their employees are doing, ignorance is no defense. Employers are strictly liable for wage violations.
An employee’s reasonable estimate of her time spent is sufficient evidence, if the employer is not tracking the employee’s time. The standard for rebuttal is high: the employer must provide “evidence of the precise amount of work performed,” or some equally concrete way to negate the employee’s approximation. Hernandez v. Mendoza, 199 Cal. App. 3d 721 (1988). This is quite difficult, since the employee is typically the expert on what she does throughout her day. (The reason for this uneven burden is that employers are supposed to be tracking their employees’ time, so failure to do so creates a bigger evidentiary hurdle.)
Recently, I obtained one of the largest single-plaintiff overtime pay awards in the country. My client was the salaried director of a hospital department. Since the hospital was short-staffed, my client often covered gaps in the schedule by providing patient care herself. As a result, she ultimately spent less than 50% of her time performing managerial tasks. The court found that she had been misclassified and was entitled to $275,000 in unpaid wages over a three-year period. See Statement of Decision, Sarkissian v. Parkview Cmty. Hosp. Med. Ctr., No. RIC1503347, 2017 WL 9772376 (Cal. Super. Ct., Riverside County Dec. 1, 2017). As a prevailing plaintiff in a wage dispute, she was also entitled to attorney’s fees and costs.
The Sarkissian scenario is more prevalent now, with staffing constraints and COVID-19 distancing requirements. Employees are doing more, with less, for longer hours.
Employees, record your hours if you think you may be misclassified. This is as easy as taking a photo of your car in the parking lot when you arrive and leave, or snapping a picture of the time stamp on your computer when you log on and off. You can also text yourself. Contemporaneous evidence will greatly aid your estimates later.
Employers, you can limit liability by surveying managers to see how they spend their time. Ask employees to confirm that their job descriptions are a complete list of duties performed.
2. Remote work may cause non-exempt employees to be owed more wages because of schedule changes, longer hours, and missed meals/breaks.
Many people are working remotely. Employees can end up working longer hours because: (1) it’s harder to be as productive; (2) employees are taking on more or different tasks; and
(3) working from home tends to erase the boundary between work and life. Some employers are also trying to stay ahead of the recession by setting unreasonable production goals.
Non-exempt employees have the right to be paid for their extra work—even if overtime isn’t permitted by company policy, and even if the overtime isn’t being reported. While an employer may terminate an employee for time violations, all work performed must be compensated.
In order to lower operation costs, some companies have implemented four-day workweeks, at nine or ten hours a day. However, this is a regulated option: if the employer doesn’t comply with requirements, then it is simply scheduling employees to work daily overtime. Cal. Code Regs. Tit. 8, § 11170.
Other businesses allow flexible remote schedules: e.g., an employee works a longer day to compensate for a shorter one. This will also incur overtime, unless: (1) the time is made up within the same workweek; (2) no day exceeds eleven hours; and (3) the employee’s written request is made for her own benefit. Cal. Lab. Code § 513.
Meal and rest break regulations are still applicable for remote workers. An employee lacks duty-free breaks and lunches if she can’t step away from her responsibilities. If she’s required to answer calls or respond promptly to texts, then she is effectively working the entire day. If she can’t take a timely break or lunch, she is owed a penalty.
Employees, record your time worked and what you’re doing. If the workload doesn’t allow for a timely or duty-free meal or break, note those missed opportunities. You don’t have to request compensation right away; you can wait until closer to the time of the statute of limitations, if you’re concerned that a wage complaint will jeopardize your employment.
Employers, you can keep tabs on remote work if you don’t want a surprise bill. Since time clocks aren’t an option, utilize software, or have employees e-mail their start/end times and lunches/breaks. Set attainable production goals. Promote duty-free lunches and breaks.
3. Employees working onsite are protected when they make safety complaints.
Some employers are encouraging onsite work to limit expense reimbursement and have more oversight. This can benefit employees, because it feels “normal.” Familiarity is a comfort. But we’re still in a pandemic, operating under public health orders that require alterations of traffic patterns, seating and standing arrangements, and workflow. Gloves, masks, eyewear, and individual equipment (instead of shared equipment) may also be required. Employees, research your industry’s safety guidelines at covid19.ca.gov to see if your employer is following the law.
These days, employees and third parties are communicating frequently about safety. When a business receives a complaint about mask or social distancing violations, that complaint directly implicates public policy. Thus, the employee who made or relayed the complaint is a whistleblower. She has a protected status.
I know a restaurateur who operates a mask-free establishment. He believes that COVID-19 is not real and that public health orders are oppressive. Without addressing his views, I can say with certainty that his workplace violates the law. At any time, his employees can sue for being forced to work in an unsafe environment—even if they’re “playing along” now. An employee could seek emotional distress damages for anxiety concerning COVID-19 exposure. If she became ill, a claim for punitive damages would be well-founded, given the restauranteur’s willful violations.
Employees, you can make safety complaints to anyone. In the example above, you wouldn’t be required to speak directly to the restaurateur. You could speak to any person who has the authority to investigate, discover, or correct the violation, including administrative agencies. You can complain even if you previously went along with company culture. Your health is important!
Employers, make sure you’re responsive to safety regulations and complaints. Since many employees are making public policy complaints, expect claims of retaliation. Document why an adverse employment action occurred.
4. Cutting someone’s hours may terminate their employment.
During recessions, difficult decisions are made to keep payroll in line with profits. If an employer reduces an employee’s scheduled work hours to zero, and does not reschedule that employee within the same pay period, the employer has effectively laid off the employee; this triggers the final pay requirements under section 201 of the Labor Code. Cal. Lab. Comm’n Op. Ltr. Nos. 1993.05.04 and 1996-05-30.
It doesn’t matter that the employer intends to eventually give the employee hours; the employee is still owed her final paycheck, including commissions, vacation, and partial bonuses.
Employees, you have rights related to your final paycheck. You can seek pay and penalties yourself through the Division of Labor Standards Enforcement.
Employers, have your payroll person note when employees are scheduled if you want to avoid inadvertent termination.
5. Layoffs and rehires may be motivated by discriminatory intent.
There’s a myth that employment decisions are protected during a recession because of the business reality of reduced cash flow. Actually, in a lawsuit, the employer must explain why specific employees were chosen for layoff or rehire. In recessions, protected groups tend to be disproportionately affected. It is not sufficient to rely on a supervisor who says that So-and-So is a poor or excellent performer. Sometimes, discriminatory animus is the real motivator; employers can be liable, even if they don’t know about a supervisor’s bias.
Employees, speak up now. If there’s a supervisor who plays favorites, don’t wait until you’re unemployed to point it out. Your complaint puts the company on notice. Also, don’t be shy to ask others about pay and working conditions. Those discussions are lawful and protected.
Employers, document your pay cuts, terminations, and rehires. Make a list of all employees; examine patterns in decision-making. If you don’t recognize the context of your choices, you’ll face a reckoning when a plaintiff’s attorney points out the pattern later.
6. Anxiety and depression are pervasive and can qualify as disabilities.
This is a difficult time. The pandemic, economic instability, a chaotic election season, social unrest, and vicious wildfires are all fostering anxiety and depression.
As part of reopening, most employers are required to educate employees about stress. Statistically, some employees will be more egregiously affected and develop disabling mental or physical issues. Employers must engage in the interactive process and provide accommodations to support those employees.
Only reasonable accommodations are required, but the fact that an employer finds an accommodation to be inconvenient or undesirable is not the standard. Given the widespread adoption of telework and flexible scheduling, those are likely reasonable accommodations. Other common accommodations include approving intermittent leave, changing job duties, and providing hardware and software.
Employees, don’t be ashamed of your mental or physical issues. If you’re struggling, it’s because this is a historically tough time. It’s illegal for your employer to retaliate, so ask for what you need.
Employers, expect more of your workforce to qualify as disabled. Proactively offer accommodations to engage in a good faith interactive process. The DFEH’s Request for Reasonable Accommodation form is useful in documenting discussions.
7. Some people’s stress manifests as abusive behavior. This can qualify as harassment or trigger protected complaints.
It’s a good idea to practice patience, kindness, and compassion during difficult times. But some people react very poorly to stressors. They become abusive to others, making irrational demands, acting inconsistently, and behaving unprofessionally.
This hostility can easily result in illegal harassment: for example, blaming Asians for COVID-19; berating older workers because of their high-risk status; or punishing someone for contracting COVID-19. Harassment based on these protected statuses is illegal under FEHA.
Hostile managers may also commit sexual harassment, preying on vulnerable employees in an uncertain job market.
Even when unlawful harassment has not occurred, an employee who speaks up about any mistreatment has made a protected complaint. Any adverse employment action that occurs close in time to the complaint will be presumptively considered retaliation.
Employees, report unacceptable working conditions. If you believe you are being targeted for a protected status, say so. The act of complaining is protected, and may result in a positive change. You deserve a civil and fair workspace.
Employers, encourage your employees to be more professional than usual, to compensate for shorter tempers and higher tension.
Signs abound saying, “We’re all in this together.” That sentiment is especially true in the employment context. Employers and employees form a symbiotic whole. Knowing the law will help us all to create safe, productive, sustainable work environments.
Nicole A. Nguyen is a partner at Sessions and Kimball LLP, a law firm in Mission Viejo that focuses exclusively on employee rights. Her professional awards include Southern California Super Lawyers and Top 100 Court Verdicts. She has served the public and the industry by volunteering, teaching, and writing for the OCBA, CEB, and other organizations. She is the chair-elect of the OCBA Labor and Employment section. She may be reached at email@example.com.