California Labor Commissioner Clarifies Worker Rights Amid Wildfire Emergencies
Worker Rights During Emergency Conditions
Workers possess specific rights during the Los Angeles County wildfire. It is unlawful for employers to mandate that employees report to, or prevent them from leaving, an area affected by an emergency if they reasonably believe it is unsafe. Additionally, employers cannot prohibit workers from using their mobile devices to seek emergency assistance, evaluate the safety of a situation, or check on the well-being of others. These protections remain in effect until the emergency condition concludes. Certain workers, such as first responders and disaster service workers, may be exempt from these protections. For comprehensive details, refer to Labor Code section 1139.
Compensation During Work Interruptions
Employees are entitled to compensation for all hours worked, which encompasses any time an employee is under the employer's control, even if they are not actively performing duties. This includes situations where employees are required to remain on the employer's premises during power outages or other disruptions caused by wildfires. Under such circumstances, employees must receive their regular rate of compensation, which cannot be less than the minimum wage, or any applicable overtime rate.
Alternative Workweek Schedules
For employers operating under a bona fide Alternative Workweek (AWW) arrangement, if a power outage necessitates sending workers home during a regularly scheduled workday with instructions to return later in the week on a non-regularly scheduled workday, the first eight hours worked on that day must be compensated at time and a half. Any hours worked beyond eight on the non-regularly scheduled day must be paid at twice the regular rate. However, if an employer anticipates reducing exposure to power outages by occasionally shifting the scheduled days and provides at least a week's notice, the AWW remains valid. For enforcement purposes, the Division of Labor Standards Enforcement (DLSE) permits employers to shift schedules up to four times a year; more frequent changes may invalidate the AWW.
Leave Entitlements
If an employer has a vacation or paid time off policy, employees may choose to utilize such leave and be compensated, provided the terms of the policy allow for it. Paid sick leave may also apply if the employee is qualified and requests leave for a permissible reason. The paid sick leave law stipulates that employers must provide paid sick days for purposes including the diagnosis, care, or treatment of an existing health condition of, or preventive care for, an employee or an employee’s family member. If the employee qualifies for sick leave and requests it, the employer is obligated to provide such leave and compensate the employee under California Paid Sick Leave laws.
Retaliation Protections
Employees are protected from retaliation if they engage in activities safeguarded by law. For instance, Labor Code section 98.6 prohibits employers from retaliating against an employee for filing or threatening to file a claim or complaint with the Labor Commissioner, initiating any proceeding related to rights under the jurisdiction of the Labor Commissioner, or testifying in such proceedings. In addition to other remedies, a civil penalty of up to $10,000 may be awarded to an employee for each violation of Labor Code section 98.6. Workers may file a retaliation claim with the Labor Commissioner’s Office if they believe they have been subjected to adverse actions for exercising their rights.
Employer Responsibilities for Worker Safety
Employers in California are mandated to protect workers from workplace hazards, including unhealthy air resulting from wildfire smoke. Cal/OSHA's Protection from Wildfire Smoke standard requires employers to monitor the Air Quality Index (AQI) for PM2.5 before and throughout the work shift. If the AQI for PM2.5 is 151 or greater, employers must implement modifications to reduce exposure, such as providing enclosed structures with filtered air or relocating work to areas with better air quality. Additionally, employers must provide proper respiratory protection equipment, like N95 respirators, and offer training and instruction to all employees on the health effects of wildfire smoke and the proper use of protective equipment.
Resources and Assistance
Workers and employers seeking more information on protections from wildfire smoke can visit Cal/OSHA's dedicated webpage. For questions related to health and safety in the workplace, individuals can contact Cal/OSHA's Call Center at 833-579-0927, where bilingual representatives are available to provide information on topics including wildfire smoke. Employers are encouraged to review the Worker Safety and Health in Wildfire Regions webpage, which contains information and resources on protecting workers exposed to smoke from wildfires and ensuring safety during cleanup operations.
About the California Labor Commissioner's Office
The California Labor Commissioner's Office, officially known as the Division of Labor Standards Enforcement (DLSE), is dedicated to ensuring a just day's pay in every workplace in the state and to promoting economic justice through robust enforcement of labor laws. The office investigates complaints of non-payment of wages, overtime, and other labor law violations, and educates the public on labor laws and workplace rights.
Brad Nakase
California Business Lawyer & Corporate Lawyer Inc.
+1 213-277-7400
email us here
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