Pending Labor and Employment Bills-Keep Your Fingers Crossed!

September 26, 2010

September 30 is the last day for Governor Schwarzenegger to sign or veto bills passed by the legislature this session.  The following are labor and employment related bills currently before the Governor:

AB 482 (Mendoza):  If signed by the Governor, this legislation will prohibit employers (with the exception of certain financial institutions) from using credit reports for employment purposes, unless (1) the applicant/employee would have access to money or other assets, and (2) the applicant/employee would be employed in either a managerial position, a position in the state Department of Justice, a sworn peace officer or law enforcement position, or a position for which credit information is required to be obtained by the employer.

AB 2187 (Arambula):  If signed by the Governor, this legislation would add a provision to the Labor Code criminalizing an employer’s willful failure to pay all wages due to an employee who has been discharged or who quit, within 90 days of the wages becoming due.  Wage disputes before the Labor Commissioner and/or in a civil action are exempted.  The legislation provides for jail time and/or fines up to $10,000.

AB 1881 (Monning):  If signed by the Governor, this legislation will increase the liquidated damages that an employee can recover in an action for nonpayment of minimum wage.  Whereas current law provides that an employee may recover liquidated damages equal to the amount unpaid plus interest, new law would provide for liquidated damages equal to twice the amount unpaid plus interest.

AB 2340 (Monning):  If signed by the Governor, this legislation will require employers to allow employees to take up to three days of unpaid bereavement leave upon the death of a spouse, child, parent, sibling, grandparent, grandchild or domestic partner.  Although the leave is unpaid, the employee is entitled to use any accrued paid time off he or she has available.

AB 1680 (Saldana):  If signed by the Governor, this legislation will make pre-dispute arbitration agreements unenforceable as to disputes that involve violence or intimidation by threats of violence against a person because of that person’s political affiliation, position in a labor dispute, sex, race, color, religion, ancestry, national origin, disability or medical condition (actions under the Ralph Civil Rights Act and/or Bane Civil Rights Act).

SB 1474 (Steinberg):  If signed by the Governor, this legislation is expected to increase union representation of agricultural employees by providing the Agricultural Labor Relations Board the ability to set aside an election if it finds misconduct by the employer, and to certify a labor organization as the exclusive bargaining representative if the union previously presented the Board with authorization cards signed by more than 50% of employees.

SB 1304 (DeSaulnier):  If signed by the Governor, this legislation will require private employers with 15 or more employees to provide up to 30 days paid leave for organ donation, and up to 5 days paid leave for bone marrow donation.  Such leave would not run concurrently with any leave taken under the FMLA/CFRA.

AB 2284 (Evans):  This is not a labor and employment bill per se, but it provides for a new means of trying civil cases in California, including employment cases.  If signed by the Governor, this legislation will allow parties to a civil action (post-dispute) to agree to an expedited jury trial, including a jury of 8 or fewer members, a limit of 3 peremptory challenges per side, and a limit of 3 hours for each side to present its case.  The verdict is binding, subject to any high/low agreement entered into by the parties.  The parties would also waive rights to appeal and to file motions for direct verdict or similar post-trial motions.

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New Workers Compensation Laws

September 20, 2010

Well, as usual, California has figured out another way to fine employers. For those of you who have not heard, effective October 8, 2010, California has amended regulations that will impact materials that are to be given out to employees regarding their rights and obligations under the workers compensation laws. These new materials must be given out before the deadline noted above. These changes impact both insured and self-insured employers. The new revisions are as follows:

1. new hire pamphlets;

2. the posting notices that must be displayed on the bulletin boards;

3. the DWC-1 claim form and notice of potential Eligibility;

4. New Medical Provider (MPN) notice requirements.

Here’s where you can get in trouble. The failure to provide the current information to employees can lead to a loss of medical control, civil penalties of up to $7,000 for EACH violation of the posting requirement and the tolling of the statute of limitations for filing a claim. The latest amendments to the notice requirements gives additional information on MPN’s, and eliminates references to vocational rehabilitation which, as I understand it, is no longer available.

The Workers’ Compensation Institute has been approved to distribute the new postings and has translated the pamphlets and posting notices in Spanish as required by law and has the printed the materials ready to go. If you would like to order the new forms you can do so at www.cwci.org.

The above information was sent to me by Sam Celly of Celly Services who offers Environmental, Health & safety Services.

Just as a side note, and not to jump into the political arena, I had lunch with State Senator Tony Strickland last week. He is running for State Controller. Tony and I discussed the workers compensation system and its impact on employers. He feels the system is too one-sided and told me that he agrees that there needs to be some changes made. Look, I get it, he’s a politician but I have to say I don’t believe he is the “run of the mill politician.” I have actually met with him a few times and have taken the opportunity to express concerns about California’s attitude against employers. I honestly do believe that he will try to do some good for employers. Keep him in mind in November.


Classic Mistakes When Terminating Employees

September 13, 2010

When terminating employees it doesn’t take a genius to figure out that you have to be careful. Especially these days. Don’t get caught up into the whirlwind of emotions that may be exhibited by the outgoing employee. They may cry, become defensive, turn violent, or want a second chance. Always have your paperwork prepared (including final checks) before you enter into that final meeting and have a witness with you. 

In addition, may sure you do not lose you cool under fire. Many of you have heard me talk about this during seminars. Terminations can be stressful. Don’t aggravate the outgoing employee by  berating them in any way. Be diplomatic even though you are glad they are leaving. Their last impression of their leaving may determine whether or not they may sue. Don’t make that decision easy for them so watch what you say. Keep the discussion short. Let them know that you have thought about it and that your decision is final. Don’t let them get you into a detailed discussion about why they are being terminated and not some other employee.  

Next, an employee should never be shocked that they are being let go. Please follow progressive discipline guidelines to insure they are on notice that they are engaging in a behavior that ultimately may cause their departure from the company. Document, document, document! Sound familiar. 

Finally, do not discuss the reasons for termination with any other employee after the terminated employee has left. Sound simple? You would be surprised. A former employee can sue you based upon your discussing his/her termination with others. If you are asked why a particular employee is no longer working you simply have to state that they have moved on and will not be working there anymore. Keep it simple.

As always, if you are not sure about terminating an employee please contact us and let’s discuss it. Ultimately, it will be your decision but we can help to make sure that you have crossed your “T’s” and dotted your “I’s.”


Free Federal Postings (EEOC & Dept of Labor)

September 7, 2010

The law requires an employer to post notices describing the Federal laws prohibiting job discrimination based on race, color, sex, national origin, religion, age, equal pay, disability and genetic information. EEOC’s poster is available in English, Arabic, Chinese and Spanish. You may order up to 10 copies from this website.

EEOC has revised its “Equal Employment Opportunity is the Law” poster. This new version reflects current federal employment discrimination law (including the Americans with Disabilities Act Amendments Act of 2008). The poster was revised to add information about the Genetic Information Nondiscrimination Act of 2008, which is effective November 21, 2009. The revised poster also includes updates from the Department of Labor.

There are several ways for employers to comply with the law:

  1. Print the supplement below and post it alongside EEOC’s September 2002 “EEO is the Law” poster or OFCCP’s August 2008 “EEO is the Law” poster.
  2. Print and post the EEOC’s November 2009 version of the “EEO is the Law” poster.
  3. Order a new poster through the EEOC Clearinghouse at the address provided below. Please note that the EEOC poster is on backorder and will be shipped when the poster becomes available in the near future. The new poster will also be available in Spanish, Chinese and Arabic before the GINA statute becomes effective on November 21, 2009.

If you need more than ten copies of the poster, please contact:

U.S. Equal Employment Opportunity Commission Clearinghouse
P.O. Box 541
Annapolis Junction, MD 20701

Fax: (301) 206-9789
or call: 1-800-669-3362 (voice)
1-800-800-3302 (TTY)

To obtain free copies of other federal required posters please contact:

U.S. Department of Labor
(202) 693-0200
U.S. Department of Labor Poster Page