|
DAILY OVERTIME IS BACK Return to top
The new law reinstates daily overtime provisions in effect prior to January 1998. Generally, overtime must be
paid for work in excess of 8 hours in a workday and 40 hours in a workweek, and for the first 8 hours of work
on a seventh day of a workweek (at 1-1/2 times the employee's regular rate). Overtime also must be paid for
work in excess of 12 hours in a workday and in excess of 8 hours on a seventh day of a workweek (at 2 times
the employee's regular rate of pay). To adopt an alternative workweek schedule (i.e., 4 days/10 hours per day),
specific steps must be followed. Special overtime premium rates apply to an alternative workweek. The law
imposes new meal period requirements and "compensatory time off" requirements. Finally, the law imposes,
for the first time, individual liability for "persons acting on behalf of an employer" (i.e., supervisors,
payroll administrators, human resources representatives) for violations of the law. Simpson, Garrity & Innes
can assist you in reviewing current work schedules, implementing alternative schedules, and evaluating exempt
vs. nonexempt status of particular jobs.
BROADER SICK LEAVE BENEFITS ARE REQUIRED Return to top
A new "family sick leave" law requires employers who provide paid sick leave to allow employees to use up to
one-half of their annual sick leave accrual to attend to an illness of a child, parent or spouse. This includes
stepchildren, adopted or foster children, wards, stepparents, foster parents, and guardians. The law does not
extend the maximum period of leave available to employees under state and federal family and medical leave laws.
Also, the employer may still require employees to meet all conditions and restrictions placed by the employer
upon the use of sick leave. An employer may not deny an employee the right to use family sick leave or retaliate
against an employee for doing so. Employees who believe they have been denied family sick leave rights or
retaliated against for using this leave may bring a claim with the State Labor Commissioner or file a civil
lawsuit in court.
CALIFORNIA CIVIL RIGHTS AMENDMENTS Return to top
This law expands the rights of individuals under the California Fair Employment & Housing Act (FEHA) to include
protection from discrimination or harassment on the basis of the "perception" that a person has any of the
characteristics protected under the law (i.e., race, religious creed, color, national origin, ancestry, disability,
medical condition, marital status, sex, age) or is "associated with one who has or is perceived to have such
characteristics." The law also requires employers to grant requests for reasonable accommodation made by an
employee, on the advise of her healthcare provider for pregnancy, childbirth, or related medical conditions.
The amendments also define "supervisor" under the FEHA as any individual having the authority to hire, transfer,
suspend, layoff, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility
to direct them, or to adjust their grievances, or effectively to recommend that action, while using independent
judgment. Significantly, the new law also extends the FEHA's anti-harassment provisions to independent contractors.
SEXUAL ORIENTATION DISCRIMINATION AND HARASSMENT ARE PROHIBITED Return to top
The new law expands the FEHA to prohibit sexual orientation discrimination and harassment. Sexual orientation is
defined as heterosexuality, bisexuality and homosexuality.
USE OF SALARY AS A CRITERION FOR TERMINATION MAY LEAD TO AGE DISCRIMINATION Return to top
The FEHA is amended to expressly prohibit disparate impact age discrimination. This means that selecting employees
for termination based upon their salary may constitute age discrimination if use of the criterion disproportionately
affects workers 40 years old or older.
EMPLOYERS MAY NOT REGULATE OFF-DUTY LAWFUL CONDUCT Return to top
This law empowers the California Labor Commissioner to seek a court order recouping lost wages if an individual is
demoted, disciplined or fired for "lawful conduct occurring during nonworking hours away from the employer's
premises." In light of this law, employers should revisit any policies which seek to regulate off-duty conduct,
such as no dating policies and policies which discourage or prevent moonlighting.
JURORS, WITNESSES AND VICTIMS OF DOMESTIC VIOLENCE RECEIVE ADDITIONAL PROTECTIONS
Return to top
The new law extends protections from retaliation and discrimination against an employee absent from work to serve as a
juror or witness. The law also prohibits retaliation or discrimination against an employee who is a victim of a crime
for taking time off to appear in court as a witness. In addition, the protections apply to an employee who is a victim
of domestic violence and who takes time off to appear in court to obtain or attempt to obtain any relief to help insure
the health, safety or welfare of a domestic violence victim or his or her child. Employees must provide employers with
"reasonable notice" of the need for leave. Domestic violence victims, however, need not meet this requirement for
"unscheduled or emergency court appearances required for the health, safety or welfare of the domestic violence
victim or his or her child." In those cases, the employee must provide the employer with evidence from the court
or prosecuting attorney that he or she appeared in court. Employees are entitled to use paid time off that is
otherwise available to them for leave for any of these purposes.
In addition to the slew of new legislation, California courts have been active in the employment arena.
THE ERGONOMICS REGULATION NOW APPLIES TO SMALL EMPLOYERS
Return to top
One Court of Appeal decision deemed invalid the small employer exemption from ergonomics regulation. Now, every
employer, in every industry, must comply with the regulation governing workplace ergonomics. Generally, the
regulation applies to any job, process or operation where a repetitive motion injury (RMI) has occurred to more
than one employee. The RMIs must result in injuries from an identical work activity which is more than 50% of
the cause of an objectively diagnosed musculoskeletal injury to more than one employee. Both RMIs must be
reported to the employer within a 12-month period. Once this happens, the employer must meet several
requirements including preparing a detailed worksite evaluation, controlling exposures which have caused
RMIs and training employees with regard to RMIs. Failure to comply with the regulation may result in
criminal or civil penalties, and, of course, increased workers compensation costs.
MENTAL DISABILITY IS DEFINED BROADLY UNDER STATE LAW
Return to top
Another California Court of Appeal decision determined that, unlike the federal Americans with Disabilities Act,
the equivalent state law does not require that a condition "substantially limit" a major life activity to
constitute a protected mental disability. Thus, under state law, there is no requirement as to the degree
of disability that must result from a mental condition in order to trigger the legal protection. Claims of
mental disability must be carefully addressed in light of this conflict in the law.
This is just a sampling of the new laws employers will face in 2000. Be prepared by updating your personnel
policy manuals and handbooks, as well as related employment notices and forms. Simpson, Garrity & Innes can
provide individual policies or assist you in completing a comprehensive manual review.
|
A Professional Corporation