Sue M. Bendavid and Jasmin Bhandari Share Insights on Navigating Today’s Employment Landscape

This Employment Best Practices ‘Conversation with the Experts’ section is produced by the LA Times Studios team in conjunction with Lewitt Hackman and Scali Rasmussen.

Businesses have been navigating through a continuously altering and evolving landscape when it comes to employment issues. Return-to-work mandates, new technological advancements and workforce shortages in many industries have led to a new set of expectations, protocols and best practices when it comes to businesses determining the management methodologies for their employees. What should C-suiters and HR professionals be focusing on in terms of current standards?

To answer that and other questions while taking a closer look at what businesses need to know in terms of the latest developing trends in employment laws and best practices, we have turned to two of the region’s leading authorities, Sue M. Bendavid of Lewitt Hackman and Jasmin Bhandari of Scali Rasmussen, who graciously weighed in for a discussion and shared insights.

Q: What do you see as the most pressing legal challenges employers face in today’s employment landscape?

Sue M. Bendavid, Chair, Employment Practice Group, Lewitt Hackman: Wage and hour compliance always challenges employers. Ever-evolving laws (statutes, ordinances, regulations, case law) make it nearly impossible for employers to maintain perfect compliance. Plaintiffs bring a barrage of complaints, often involving meal and rest breaks, overtime and minimum wage claims. While some complaints are valid, many are not. The greater threat lies in potentially business-crippling penalties (e.g., waiting time, Private Attorneys General Act and attorneys’ fees), rather than the original wages owed. Mitigation requires continuous supervisor and HR training, as well as periodic internal audits to correct practices. Good faith efforts and practices may reduce or eliminate liability.

Q: What are some proactive steps businesses can take now to mitigate employment law risk in this shifting landscape?

Jasmin Bhandari, Principal Attorney, Scali Rasmussen: Plaintiffs’ attorneys are employing increasingly aggressive strategies in the area of wage and hour compliance, often targeting minor or technical violations to generate significant exposure. In this environment, employers should take proactive steps to mitigate risk. Key action items for employers include: (1) Ensuring that all hours worked are properly recorded, including remote work and after-hours communications; (2) Review the scheduling, tracking and enforcement of meal and rest breaks. Documentation of compliance is critical; (3) Conduct audits of wage statements for accuracy, ensuring inclusion of all required fields; (4) Update arbitration agreements to reflect the latest developments in California and federal case law; (5) Train supervisors on timekeeping, overtime approval and break enforcement. Consistency is critical; plaintiffs often argue that written policies are not followed in practice; and (6) Conduct a proactive PAGA audit, which can reduce penalties assessed by 85%. Employers that audit, train and document proactively are far better positioned to defend against wage and hour litigation, including class and PAGA claims, or to avoid them altogether.

Q: How are defense attorneys advising clients differently today compared to five years ago, particularly around compliance and litigation avoidance?

Bendavid: We spend more time today advising clients on video conferences, rather than meeting in person or on the phone. This eases our ability to more effectively communicate with clients, share information on screen, collaborate on documents and address employee matters in real time. It’s faster and more convenient for everyone. And we find that the face-to-face contact, even when just on camera, helps relay critical information. When we see clients on screen, we can read body language and receptivity to better assess and advise on compliance and litigation defense. In litigation, when we interview witnesses on camera, we can better evaluate credibility as well.

Q: What new litigation strategies are plaintiffs’ attorneys employing that employers should be aware of?

Bhandari: Plaintiffs’ attorneys increasingly use defendants’ insurance policies as leverage in litigation. While not every case involves insurance, those that do require a clear understanding of policy terms to navigate litigation, mediation and settlement effectively. In most cases, the first time that insurance issues come to the surface is during the settlement process. Many plaintiff’s attorneys open settlement discussions with a demand of the insurance policy limits, or in cases with “burning limits,” i.e., limits that are eroded by defense fees and costs, a demand of what remains on the policy. While plaintiff’s attorneys may paint a grim picture of potential exposure in their pursuit of the policy limits, it is important to remember that you are dealing with facts, not just allegations. Strong litigation strategies rest on a clear assessment of the case’s strengths and weaknesses, not on inflated allegations and exposure.

Q: How are remote and hybrid work models complicating compliance with state and federal employment laws?

Bendavid: Nearly five years after COVID-19, many employers now require employees to report to physical offices. Some allow hybrid schedules where employees work partial weeks at home. Some employers reported difficulties: Workers were not working when they should have been, reducing productivity. Employers faced challenges with wage and hour issues (reimbursement of expenses, timekeeping, etc.). Additionally, tax consequences for employees working out of state caused difficulties. Aside from legal issues, some workforces lacked cohesion, as employees weren’t able to engage face-to-face. This made team building especially challenging and negatively impacted employer loyalty for those who felt disconnected from their colleagues.

Q: How can businesses develop and enforce effective workplace harassment and discrimination policies in today’s environment?

Bhandari: Businesses must take a proactive, comprehensive and legally sound approach. First, draft clear, compliant policies that define prohibited conduct, outline reporting procedures and articulate consequences. These must reflect current federal, state and local laws, including evolving standards around gender identity, race, disability and remote work environments. But the best-written policies still fail to protect you without adequate training and proper, consistent application. Yes, you could do a virtual two-hour training for managers and call it a day to meet your technical requirement, but enhanced, in-person training for supervisors ensures awareness and reinforces accountability. Having multiple, confidential reporting channels to encourage disclosure also helps. Finally, investigations must be prompt, impartial and well-documented – ideally conducted by counsel or with their assistance and oversight. Equally important is cultivating a culture of respect and inclusion from the top down.

Bendavid: Employer policies should strictly prohibit harassment and discrimination in writing. Include a complaint procedure and remind all employees that anyone may bring complaints without fear of retaliation. Then consider the need to interpret into other languages, so all employees can read and understand it. Have employees sign off to acknowledge receipt. Once established, update annually to address applicable law changes (e.g., including all new “protected characteristics”). Add the policy to the Employee Handbook, discuss during onboarding and reiterate during state-mandated harassment and discrimination prevention training. Periodically circulate standalone anti-harassment policies to remind workers that the organization takes the problem seriously. Most importantly, ensure practices align with policies.

Q: What are the latest best practices for handling employee terminations to minimize legal risks?

Bhandari: Best practices are: (1) Document performance issues, policy violations and discipline. Apply policies consistently and avoid exceptions, unless for gross misconduct; (2) Wages are due at termination (Cal. Labor Code §201). Include all earned wages, overtime, unused PTO and reimbursements. Provide payment immediately; delays can trigger up to 30 days’ penalties; (3) Consider offering severance in exchange for a release of claims; (4) Keep the termination meeting brief, factual and respectful and have a witness present; and (5) Determine whether the employee recently engaged in protected activity (leave, workers’ comp, whistleblowing) and ensure legitimate, documented reasons for termination. Recent laws (Labor Code 98.6, 1102.5, and 1197.5) create a rebuttable presumption of retaliation if an employee is disciplined or discharged within ninety days of certain protected activity, so counsel should review any such terminations. The greatest risks stem from final pay errors, inconsistent policies and retaliation claims.

Bendavid: A “good” termination should never come as a surprise to the employee. And, even under at-will employment policies, employers should be able to demonstrate the reasons for a termination with documented proof. In the absence of current performance reviews or other counseling documents, employers should create a “termination memo” outlining why the decision was made. It may be a short synopsis reminding the employee about past performance conversations and examples to clarify the reasons for termination. Consider also whether to offer a severance in exchange for a release (separation agreement).

Q: How do you advise your corporate clients when it comes to dealing with accommodation requests (disability, religious, etc.)?

Bhandari: One main issue is clients not recognizing the need to look at potential disability accommodations or engage in the interactive process when no specific request has been made. The law requires engaging in the interactive process when the employer knew or should have known that an accommodation may be required (such as an employee visibly struggling with tasks), but this is often missed. Don’t wait for magic words, but don’t pry about physical or mental issues either. It is best to keep the inquiry limited to whether they need anything to be able to do their job. I also recommend generously granting leave requests and discussing denials with counsel. For religious accommodations, even if the request seems odd or inconvenient, assess if it is reasonable, based on a sincerely-held belief, and only deny if there’s a clear undue hardship – which is a high bar.

Bendavid: Disability and religion-related accommodation requests prove challenging for employers, as each situation is unique. Decisions depend on the employee’s restrictions, the job position, the accommodations requested and the impact on the employer. Providing inexpensive equipment upgrades is easy – requests like extended leaves of absence prove more difficult. Employers must engage employees in a two-way dialogue (the interactive process) to identify accommodation needs and solutions, while discussing potential hardships. Although the employee’s diagnosis is private, documenting all communications is crucial for alignment and to legally defend against potential claims of discrimination or failure to accommodate.