Coming attractions in employment law for 2003 - & beyond - Employment Law - Gray Davis, California

California CPA, Dec, 2002 by Janet I. Swerdlow

Gov. Davis' hand must be tired from signing so much employment law-related legislation in a single session. From bills regarding the nation's first paid family leave program to California's own WARN act, employers need to be aware of their new obligations.

Here are just a few of the nearly 20 new laws affecting California's workplaces.

SB 1661 -- FAMILY LEAVE POLICY

Most people have heard of SB 1661, which was created to provide compensation to employees who are unable to work because of sickness or injury of a family member or domestic partner, or the birth, adoption or foster care placement of a child.

Employees on leave for these reasons are eligible to receive up to 55 percent of their wages, to a maximum of $728 per week.

This benefit is funded by employee contributions with a maximum cost of $70 per year from each employee to ensure a qualified six-week paid leave.

Employers can require employees to use up to two weeks of their accrued vacation before receiving this partial wage replacement. Moreover, there is a one-week waiting period before employees can apply for the program. Although the statute becomes effective on Jan. 1, 2004, employees must wait until July 1, 2004 to use the benefit.

SB 1661 does not require employers to reinstate all employees returning from this leave, so companies are not required to hold open positions for employees on leave unless required to do so under another state or federal law, such as the federal Family and Medical Leave Act or the California Family Rights Act.

This new law will not extend the 12 weeks of unpaid leave available to certain employees under the FMLA or CFRA.

AB 2509 -- LOCALIZED WAGE AND HOUR LAWS

As of Jan. 1, AB 2509 will allow cities, counties, districts and agencies to create and enforce their own wage and hour laws. Consequently, employees might get the benefit of a greater overtime multiplier or a higher minimum wage.

This raises the possibility that some employers, already faced with state and federal wage and hour laws, may encounter a third regulatory source.

One city, Santa Monica, was unsuccessful in its attempt to raise its minimum wage to $10.50 an hour with a measure on its November ballot.

Local jurisdictions cannot yet impose stricter wage, hour and working condition requirements than those imposed by California law without risking a reduction in state funding.

AB 2412 -- EMPLOYEES' RIGHT TO INSPECT THEIR PAYROLL RECORDS

AB 2412 mandates employers to comply with an employee's request to inspect and copy their payroll records within 21 days and imposes a $750 penalty for noncompliance.

Currently, California law allows employees to inspect and copy their payroll records, but does not provide a deadline as to when employers must respond to an employee's requests and does not provide more than a nominal penalty for noncompliance.

The new law also provides that employers can designate a person who must receive the requests, so companies should modify their policies to identify a human resources or other appropriate contact person to ensure these requests are processed.

AB 1599 -- NEW PROTECTION FOR OLDER WORKERS

The California Fair Employment and Housing Act prohibits employers from discriminating against individuals age 40 and older with respect to hiring, suspension, demotion and termination of employment. AB 1599 expands this act and also will make it unlawful to discriminate against individuals age 40 and older with regard to training opportunities.

FEDERAL TRADE ACT OF 2002 -- COBRA COVERAGE

The implications of the Federal Trade Act of 2002 are important to note. The act gives employees who lose their jobs because of increased competition with foreign imports more time to decide whether to continue receiving employer-provided benefits--at their own cost--under the Consolidated Omnibus Budget Reconciliation Act (COBRA).

This law gives certain employees six months--up from 60 days--from the date they lost employer-provided health benefits to elect coverage. Employers in industries where foreign competition may play a role in terminations should revise their COBRA documentation to reflect the new provision.

Employees currently have 60 days under COBRA to decide whether to continue their group health care benefits. If they elect not to, they do not get a second chance to elect coverage. These rules still apply to most employees.

AB 2895 -- TALKING ABOUT WORKING CONDITIONS

Existing law provides that employers cannot prohibit or discipline employees for discussing their wages. AB 2895 provides employees the same protection for discussing working conditions.

Employers should note that this law does not prohibit them from having confidentiality agreements to avoid disclosures of proprietary information, trade secrets or other legally privileged information. Also be aware that under federal labor laws, employees have a broad, legal right to engage in concerted activities related to wages and other terms and conditions of employment.

Therefore, in light of this new law and the federal law, employers should contact counsel before disciplining an employee for complaining or taking concerted action about working conditions.