Three More New CA Employment Laws

October 26, 2011 By Adam Treiger Leave a Comment

SB 272:  Organ Donor/Bone Marrow Leave of Absence.  This leave of absence already existed, but the new amendments make it clear that the 30 day leave for organ donation is 30 business days, not calendar days, and that during this leave seniority and benefits, including vacation, continue to accrue.

SB 299:  Health Insurance Coverage for Pregnancy Disability Leave (“PDL”).  Under the old law, if an employer had fewer than 50 employees, the employer did not have to pay for health insurance for employees out on PDL.  Moreover, if an employer had 50 or more employees within a 75 mile radius, the employer had to pay for health insurance coverage for employees out on PDL, but only for 3 months, not 4.  The new law provides that all employers with 5 or more employees must pay for health insurance coverage for employees out on PDL for the full duration of the PDL, which can be up to 4 months.

AB 22:  Credit Checks.  Under the old law, employers could use employee’s credit reports to make hiring decisions, as long as the potential employee was notified.  Now, Employers may not use credit checks at all, except when hiring for certain specified positions, such as managers and persons who will have access to the employer’s trade secrets or funds.

–Adam K. Treiger

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More On AB 469 – “The Wage Theft Prevention Act of 2011”

October 13, 2011 By Adam Treiger 1 Comment

Yesterday I blogged about a new California law known as AB 469, which imposes an obligation on employers to provide notice of certain information to new hires, and supplement those notices as information changes.  I wanted to add a few more thoughts.  First, this new notice requirement does not apply to exempt employees.  So, as long as an employee is classified correctly as exempt, employers need not worry about this new law for these employees.  Of course, if an employee is misclassified as exempt, this new law adds yet another layer of legal problems for an employer who is found liable for such misclassification.  Second, the Labor Commissioner will be promulgating a form that employers can use to provide this notice.  That will be helpful, but it won’t go very far to blunt the administrative burden this new law creates for employers.  Third, this new law increases the statute of limitations for the DLSE to collect penalties from 1 to 3 years (but it does not increase the 1-year limitations period for penalties in private enforcement actions).   Fourth, this new law does not take effect until January 1, 2012.  So, Employers have about 2½ months to get ready for compliance.  Fifth, this new law increases the penalties (both civil and criminal) for violation of the wage laws (as if the existing penalties were not bad enough).   In this time of high unemployment, is this new law — especially the new notice requirements contained in it — really what is needed in California?  I mean, if an employer is on the fence about hiring a new employee, and could go either way, why does the state want to impose this difficult notice requirement that only kicks in upon hiring a new employee?  We should be thinking about ways to create jobs in this state.  But, if we can’t do that, at least we should not pass unnecessary laws to discourage job creation.   –Adam K. Treiger

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California Has Three New Employment Laws This Week

October 12, 2011 By Adam Treiger Leave a Comment

First, SB 459.  This new law increases the penalties ($5,000 to $25,000 per violation) for misclassification of a worker as an independent contractor, when the worker should have been classified as an employee.   However, these new penalties only apply if the misclassification was “willful”.  Willful is defined by the law as “voluntarily and knowingly misclassifying” an individual.  Also, the new law adds a shame factor.  If an employer is found to have willfully misclassified, the employer must display this fact prominently on its own website.  An employer’s advisor (other than an employee or attorney) who knowingly advises the employer to misclassify a worker as an independent contractor may also have individual liability under the new law.

Second, AB 469:  This new law requires that employers provide additional information to new employees at the time of hire, and supplement that information as it changes during the course of employment.  The information that now must be provided is:  (1) the pay rate and the basis, whether hourly, salary, commission or otherwise, as well as any overtime rate, (2) allowances, if any, claimed as part of the minimum wage, including meals or lodging, (3) the regular payday, (4) the name of the employer, including any “doing business as” names used by the employer; (5) the physical address and telephone number of the employer’s main office or principal place of business, and a mailing address if different, and (6) the name, address and telephone number of the employer’s workers’ compensation carrier.

Third, AB 887:  The Fair Employment and Housing Act already outlaws gender indentify discrimination.  But, this new law amends the act to include another protected classification to the list:  “gender expression”.  Gender expression refers to a person’s gender-related appearance and behavior, whether or not stereotypically associated with the person’s assigned sex at birth.    –Adam K. Treiger

 

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Are Called Teachers Exempt Ministers Under Federal Civil Rights Laws?

October 5, 2011 By Adam Treiger Leave a Comment

In 2005, a Lutheran Church and school in Michigan named Hosanna-Tabor, which is affiliated with the Lutheran Church-Missouri Synod, terminated Cheryl Perich, a called teacher, because she threatened to sue under the Americans with Disabilities Act (“ADA”), and because she did not try to resolve her dispute through internal church procedure.  Perich taught third and fourth grades.  Some subjects Perich taught were secular, and some religious.  Perich sued under the ADA’s anti-retaliation provisions.  The Church prevailed in the federal trial court, but that decision was overturned by the 11th Circuit Court of Appeals.  The United States Supreme Court hears arguments on the case this week, and is expected to rule sometime next year.  Under the ADA, it is clear that churches can discriminate on the basis of religion.  And, under the Ministerial Exception to the federal civil rights laws, churches can discriminate against their ministers, and courts are not allowed to interpret or interfere with church doctrine.  The main issue in the Perich case is whether Perich, a called teacher, is a minister, as the trial court found, or a secular employee, as the appeals court found.  This question will not be easy to answer.  On the one hand, Perich spent approximately six hours and fifteen minutes of her seven hour day teaching secular subjects, and using secular textbooks, without incorporating religion into the secular material.  Moreover, the primary duties of called teachers at this church were identical to those of non-called teachers, who do not have the title of minister, and at least one non-called teacher who taught at the church was not Lutheran.  On the other hand, Perich participated in and led religious activities throughout the day, Perich was required to be a “fine Christian role model”, Perich underwent extra religious training as a result of completing her colloquy, and Hosanna-Tabor gave Perich the title of “commissioned minister” and held her out to the world as a minister by bestowing this title upon her.  There have been numerous cases that have ruled on the issue of whether a teacher at a church school is a minister.  But, this will be the first time the Supreme Court will decide the issue.  –Adam K. Treiger

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