Employment Law Changes for 2011:

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The majority of the changes in employment law in 2010 came in the form of court decisions, although the state legislature did pass a few new statutes that affect employers. Employers should be aware of these changes to ensure that all policies are up-to-date and that they are in compliance with California and federal law.

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A New Leave of Absence

Paid Leave for Organ and Bone Marrow Donors

What obligations does an employer have to organ and bone marrow donors? Effective January 1, 2011, employers with 15 or more employees must provide paid leaves of absence up to five (5) days for bone marrow donors, and up to thirty (30) days for organ donors.Employers should update their policies to include this new paid leave.

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Guidance_in_the_Area_of_Harassment_Claims:
What is Unwelcome Conduct?

Can an employee claim harassment if others perceive the alleged harassing behavior as welcome? In Equal Employment Opportunity Commission v. Prospect Airport Services, a recent widower worked with a married woman. She wrote several sexually suggestive and inappropriate notes to him, continuously telling him she was interested in him. He complained to several management officials. Management officials told the female employee to stop, but she continued. The employee admitted that most men in his circumstances would have welcomed the behavior, but that due to his Christian background, he was embarrassed. The court stated that an employer cannot assume that because a man receives sexual advances from a woman that those advances are welcome, and it does not matter whether other men might have welcomed this co-worker’s sexual propositions.

This case is a good reminder that a male employee can have a claim of sexual harassment against a woman, just as a woman can have a claim against a man, a man can have a claim against a man, and a woman can have a claim against a woman. In receiving complaints of sexual harassment, supervisors must never judge whether someone is being harassed based on what their personal reaction would be. All harassment complaints must be taken seriously.

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Changes in the Area of Discrimination Prevention

Health Care Bridge Plan Exemption

Can employers change the health benefits of employees who become eligible for Medicare benefits? The California legislature has now answered this question for employers concerned about liability for age discrimination. Effective January 1, 2011, the California Fair Employment and Housing Act (“FEHA”) was amended to state that employers may provide altered or reduced health benefits or health care reimbursement plans to retired persons, and may even eliminate these benefits or plans, when the retiree becomes eligible for Medicare benefits. This provision applies to all retiree health benefit plans and contractual provisions or practices concerning retiree health benefits and health care reimbursement plans in effect on or after January 1, 2011.

Stray Remarks About Age

Can stray discriminatory remarks made by employees come back to haunt the employer? In Reid v. Google, Inc., an employee in his early 50’s who worked as Google’s director of operations and director of engineering was terminated after working for fewer than two years. The reasons given were job elimination and poor performance. During his employment, younger, high level employees made derogatory remarks about his age and allegedly called him an “old man,” an “old guy,” and an “old fuddy-duddy.” The employees who made these remarks were not the employees who made the decisions to terminate the employee, and they made the comments outside of the decision-making process. The California Supreme Court held that it was appropriate to consider these stray remarks in determining whether the real reason for termination of the employee was his age.

Employers must be attentive to remarks that employees make about other employees, even if those persons making the comments are not decisionmakers and the remarks are not made in the context of deciding, for example, whether to promote, demote, or fire an employee.

Genetic Information Nondiscrimination Act (“GINA”)

How can an employer protect itself from claims that it has violated the Genetic Information Nondiscrimination Act? Title II of the Genetic Information Nondiscrimination Act (“GINA”) prohibits the use of genetic information in making decisions related to any terms, conditions, or privileges of employment, and restricts employers from requesting, requiring or purchasing genetic information. It applies to private employers with 15 or more employees and state and local government employers. An employer can inadvertently request genetic information and violate the statute by, for example, requesting information about an individual’s ability to perform a job, including fitness for duty testing, medical leave certifications, and return to work releases. An employer may inadvertently learn genetic information from a physician’s note provided when an employee requests leave to care for a seriously ill family member.

To avoid liability through inadvertent acquisitions of genetic information, an employer should include “safe harbor” language, either verbally or in writing, when making a request for health-related information. To obtain the “safe harbor” language suggested in recently passed Equal Employment Opportunity Commission (“EEOC”) regulations which employers should include in medical inquiry forms, call one of the attorneys in our employment group listed at the bottom of this page.

Employers should review all forms that are provided to employees requesting health-related information, even if the forms request information about leave taken for a family member’s illness, and add the safe harbor provision.

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Wage and Hour Laws

Providing Seating To Employees

Can an employee sue an employer for failing to provide seating? Late last year two court decisions were issued holding that employees can file suit and collect substantial penalties if an employee has not provided seating pursuant to the wage orders. Both cases involved Wage Order No. 7-2001, which applies to the mercantile industry, and provides “(a) All working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats; (b) When employees are not engaged in the active duties of their employment and the nature of the work requires standing, an adequate number of suitable seats shall be placed in reasonable proximity to the work area and the employees shall be permitted to use such seats when it does not interfere with the performance of their duties.” The court held in both cases that the employees had valid claims.

The majority of the wage orders that apply to other industries have these same seating requirements. Given these recent court decisions, employers should review the seating that is provided in their workplaces and ensure compliance with the wage orders.

Paying Employees for Activities Performed at Home

When must an employer pay an employee for work performed at home after hours? In Rutti v. Lojack Corporation, Lojack employed hourly, non-exempt individuals to install and repair vehicle recovery systems. Every evening when employees returned home, they were required to upload data about work to the company. The transmissions took about 15 minutes a day, which added up to over an hour a week. The court held that the employer had to compensate the employees for this time.

Employers should be very cautious about work performed at home by non-exempt employees. For example, if an employer expects non-exempt hourly employees to review and respond to e-mails before or after work, whether by remotely accessing their work computers, on iPhones, or by some other method, and does not pay them for that time, it could be liable for unpaid wages.

Complying with Paycheck Stub Requirements

In Morgan v. United Retail Incorporated, employees brought a class action against their employer because although the employer noted the total number of regular hours and total number of overtime hours worked by employees on their paycheck stubs, it did not list the sum of the regular and overtime hours on a separate line. The court held that there was no violation by the employer and noted that since the paycheck stubs accurately listed the total number of regular hours and total number of overtime hours worked during the pay period, the employee could simply add those two numbers to determine the sum of all hours worked.

Employers must keep in mind that very specific information must be included on paycheck stubs. To receive a list of the pay stub requirements call one of the attorneys in the employment group or access the detailed version of this letter at www.fentonkeller.com.

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Safety in the Workplace – Outdoor Work Sites

Effective November 4, 2010, new regulations went into effect concerning heat illness prevention. These regulations apply to all outdoor places of employment. Employees must have access to potable drinking water. In work areas where drinking water is not plumbed or continuously supplied by some other method, it must be provided in sufficient quantities at the beginning of the work shift to provide one quart per employee per hour for drinking for the entire shift. Furthermore, there must be available shade when the temperature exceeds 85° Fahrenheit.

Employers in the fields of agriculture, construction, landscaping, oil and gas extraction, and transportation or delivery of agricultural products, construction materials or other heavy materials must follow special “high-heat” procedures when the temperature equals or exceeds 95°. They must ensure that effective communication is maintained so that employees at the work site can contact a supervisor when necessary. They must also observe employees for alertness and signs or symptoms of heat illness, remind employees throughout the work shift to drink plenty of water, and closely supervise new employees for the first 14 days of employment.

Employers whose employees work outside must train both supervisory and non-supervisory employees before they begin work that could result in exposure to the risk of heat illness. These measures must be integrated into an employer’s written Injury and Illness Prevention Program, or maintained in a separate document that is made available to employees.

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Change in Background Check Disclosures

Previously, employers that performed background checks on applicants and employees were required to disclose to employees the name and address of the agency conducting the investigation. Under new legislation, employers must also disclose the internet website address or the telephone number of the investigative consumer reporting agency.

Employers that perform background checks should check their disclosures to employees and make sure all of the required information is included.

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Unemployment Compensation Clarification

Employees Who Leave Work for Domestic Violence Reasons
American Recovery and Reinvestment Act of 2009.
The legislature passed a statute that provides that employees who leave their employment to protect their families or themselves from domestic violence abuse are eligible for unemployment benefits.

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New Posting Requirements

New Workers’ Compensation Posting Requirements
 Effective October 8, 2010, employers were required to post a new “Notice to Employees – Injuries Caused by Work” posting. The specific information that must be included in the notice can be accessed at www.fentonkeller.com, click “new law letter.”

There is also a new workers’ compensation claim form for employees to report on-the-job injuries. Failure to meet this posting requirement can result in a fine of up to $7,000 in civil penalties.

If you have any questions about compliance with these various laws, please do not hesitate to contact any member of our employment group: Mark Cameron, Dennis McCarthy, Christopher Panetta, Sara Boyns, Sharilyn Payne, Michael Burns, or Katie Hogan.

Family Medical Leave Act Regulations (FMLA).
As you may know, the new FMLA regulations went into effect January 16, 2009. The new regulations added two types of leave related to military service (service member caregiver family leave and qualifying exigency leave). In October 2009, as part of the 2010 National Defense Authorization Act (NDAA), the FMLA was amended to expand those two types of leave. The NDAA now allows the parent, child, or spouse of an individual on active duty to take qualifying exigency leave. In addition, the service member caregiver family leave portion of the law is clarified to allow for leave to care for an employee’s qualifying family member who is undergoing medical treatment, recuperation or therapy for a serious illness or injury that occurred during the five years preceding the date of treatment.

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If you have any questions about compliance with these various laws, please do not hesitate to contact any member of our employment group: Mark Cameron, Dennis McCarthy, Christopher Panetta, Sara B. Boyns, Sharilyn R. Payne, Michael Burns, or
Katie Hogan.

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