236 | 2024 Cal-Peculiarities ©2024 Seyfarth Shaw LLP www.seyfarth.com Enterprising plaintiffs’ lawyers, invoking PAGA, have sued companies to seek civil penalties for failing to maintain temperatures to “provide reasonable comfort with industry-wide standards.” No published case thus far has provided guidance on the provision. One welcome development in temperature jurisprudence has been a federal district court decision dismissing a section 15 claim where the plaintiff could not cite an applicable “industry-wide standard” applying to temperature in the defendant’s business establishment.342 On July 23, 2024, Cal/OSHA implemented a new standard to its General Industry Safety Orders that covers California Heat Illness Prevention in Indoor Places of Employment.343 The new section applies to all indoor work areas where the temperature (or heat index) equals or exceeds 87 degrees Fahrenheit when employees are present or 82 degrees Fahrenheit when employees are wearing clothing that restricts heat removal. Workplaces are required to monitor the temperature, keep accurate records of the temperature, provide access to potable drinking water and cool-down areas, provide training on heat illness factors, reduce risk factors associated with high temperatures, and establish, implement, and maintain an effective Heat Illness Prevention Plan.344 7.12 Restrictions on Having Employees Pay for Costs of Business California employers must themselves incur all the costs incurred in the normal operation of business, without requiring employees to act as insurers against ordinary business losses. California courts thus have invalidated many wage deductions taken to cover business losses that have resulted from factors beyond the employee’s control or from simple employee carelessness.345 The DLSE also has taken this position.346 7.12.1 Employers cannot use wage deductions to cover business expenses Wage Order upheld by California Supreme Court. Section 8 of most Wage Orders reads: “No employer shall make any deduction from the wage or require any reimbursement from an employee for any cash shortage, breakage, or loss of equipment, unless it can be shown that the shortage, breakage, or loss is caused by a dishonest or willful act, or by the gross negligence of the employee.” The Supreme Court upheld this provision in Kerr’s Catering Service v. Department of Industrial Relations,347 deciding that employers cannot make payroll deductions that would make employees financially responsible for business losses that did not result from the employees’ gross negligence or willful misconduct. The employees at issue sold food from lunch trucks. They earned wages plus a commission based on their sales, with the commission reduced by any cash shortages. Kerr’s Catering upheld the Wage Order on the rationale that the concept of protecting employees from wage deductions already existed in various Labor Code provisions: section 221 forbids an employer to collect back from an employee wages already paid, and sections 400-410 limit employers’ rights to seek cash bonds from employees. Rule against business-expense deductions applied to exempt employees. The DLSE has opined that the Labor Code itself, rather than just section 8 of the Wage Orders, bars the deductions expressly barred by section 8. That DLSE interpretation would mean that the anti-deduction rules protect exempt employees as well as the nonexempt employees protected by the Wage Orders.348 Development of general concept. The concept stated in Kerr’s Catering—that California employers must not make employees insurers for general business losses—extends to other contexts, making certain commission and bonus plans suspect under California law (see §§ 7.15, 7.16).
RkJQdWJsaXNoZXIy OTkwMTQ4