Gender discrimination has been outlawed in the United States since the Civil Rights Act of 1964. See, “Gender Equality and Discrimination in the Workplace.” On January 1, 2012, California’s Fair Employment and Housing Act (FEHA) will expand the concept of gender to bar discrimination for “gender identity” and “gender expression.”

Under this new FEHA provision, those who regard themselves as the sex opposite their original physical gender (e.g., trans-gender individuals) and those who dress and/or act outwardly as the opposite sex (e.g., cross-dressers) will be entitled to the same protections against mainstream gender discrimination (e.g. paying women less than men at the same or equivalent jobs).

While the law doesn’t give a specific definition of “gender identity,” it does define gender expression as “A person’s gender-related appearance and behavior whether or not stereotypically associated with the person’s assigned sex at birth.”

January 1, 2012

State Reveals Its Template for Notice to All Newly Hired Employees

Our October 21, 2011 blog “Added Notice Requirement for California Employers” alerts employers to a required notice to newly hired workers, effective January 1, 2012, specifying basic but vital information. Under the Wage Theft Protection Act (Assembly Bill [A.B.] 469), the notice must include:

• The rate or rates of pay and basis thereof, whether paid by the hour, shift, day, week, salary, piece, commission, or otherwise, including any rates for overtime, as applicable;
• The regular payday designated by the employer;
• Allowances, if any, claimed as part of the minimum wage, including meal or lodging allowances;
• The employer’s name, including any “doing business as” names used by the employer;
• The physical address of the employer’s main office or principal place of business, and a mailing address, if different;
• The employer’s telephone number;
• The name, address, and telephone number of the employer’s workers’ compensation insurance carrier; and
• Any other information the California Labor Commissioner deems material and necessary.

The Act also specifies that the Labor Commissioner and its Department of Labor Standards Enforcement (DLSE) issue as soon as possible a template notice for employer use. This state-recommended on-line template is now available. The DLSE FAQ page adds that although the state has thus far only issued the template in English, employers must provide the notice “in the language the employer normally uses to communicate employment-related information to the employee.” Thus, if management normally communicates with workers in another language, such as Spanish or Chinese, the notice must be in the applicable tongue. The DLSE plans to provide templates in other languages soon.

Over the past several months, we have been alerting our readers to important California labor laws new in 2012. Here’s a summary:

California’s Wage Theft Prevention Act; Employers Must Supply an Additional Detailed Written Notice to Most New Hires: In addition to existing written notification requirements (including rights to equal employment opportunity, minimum wage and many other points), employers now must provide a notice specifying fundamental workplace information “in the language the employer normally uses to communicate employment-related information” to every hourly employee at the time of his or her hire. See, “California Wage Theft Protection Act.”

Stiffer Penalties for Deliberately Misclassifying Employees as Independent Contractors: Labor Code sections 226.8 and 2753 authorize the California Labor and Workforce Development Agency, the state’s Labor Commissioner or a court to impose civil penalties between $5,000 and $25,000 for each instance of willful misclassification of an employee as an independent contractor. Thus, a business that has deliberately mislabeled even ten workers as independent is exposed to total fines between $50,000 and $250,000. See, “Personal Liability and Mandatory On-Line Flogging for Misclassifying Employees as Independent Contractors.”

Gender Identity and Expression Protections: Discrimination for a person’s gender has been illegal in the U.S. since the 1960s. California’s Fair Employment and Housing Act (FEHA) now expands the concept of gender to bar discrimination for “gender identity” and “gender expression.” See, “Gender Identity and Expression Protection.”

Genetic Information Discrimination Prohibited: Beginning January 1, 2012, FEHA also prohibits businesses from discriminating against applicants and employees based on genetic information. The new law imposes California standards tougher than the federal 2008 Genetic Information Non-Discrimination Act (GINA). See, “Genetic Information Discrimination.”

Additional Protections for Pregnant Employees: FEHA also now requires all California employers to keep a pregnant employee’s group medical coverage in effect during pregnancy leave and to pay the employer portion of the premium during that period. See, “Expanded Pregnancy Health Benefits Law for Most California Employees.”

If you have any questions or concerns on implementation of these laws into your business practices, contact an experienced employment law attorney.

January 1, 2012

California Governor Jerry Brown recently signed Senate Bill 299 into law extending health insurance coverage benefits for employees out on pregnancy disability leave, effective January 1, 2012. As covered in “Pregnancy Disability Leave,” California employers with five or more persons on payroll (whether full- or part-time) must provide any female employee up to four months of unpaid leave for her pregnancy, delivery and newborn care. (California employers with 50 or more on payroll must also provide any qualified female employee with up to 12 additional weeks of medically required maternity leave under the California Family Rights Act (CFRA) or the federal Family and Medical Leave Act (FMLA).)

Currently, employers may opt to make group health insurance coverage available to their workers. The new law requires that if a California employer provides such benefits, it must continue to make them available to a pregnant or new mom out on pregnancy disability leave. The employer must continue that coverage on the same terms and conditions applied to active employees. For example, if the employer normally pays an employee’s premium in full when she’s actively on the job, that company must now continue to pay full premium while she’s out on the four month pregnancy leave.

A business may recover from the employee the premiums it paid to maintain such coverage during the leave if the worker fails to return at the end of the four month maximum period and if that failure was not due to exercise of additional leave rights under FMLA/CFRA or not due to a circumstance beyond the employee’s control. .

Employers should review the new law and contact a California labor law attorney if they have any questions on the new requirements.

January 1, 2012

Specific Written Disclosures to New Hires

Effective January 1, 2012, California Assembly Bill AB 469 will require private employers to distribute a document “in the language the employer normally uses to communicate employment-related information” to all hourly employees at the time of their hire.

The written notice must include:

• The rate or rates of pay and basis thereof, whether paid by the hour, shift, day, week, salary, piece, commission, or otherwise, including any rates for overtime, as applicable;
• The regular payday designated by the employer;
• Allowances, if any, claimed as part of the minimum wage, including meal or lodging allowances;
• The employer’s name, including any “doing business as” names used by the employer;
• The physical address of the employer’s main office or principal place of business, and a mailing address, if different;
• The employer’s telephone number;
• The name, address, and telephone number of the employer’s workers’ compensation insurance carrier; and
• Any other information the California Labor Commissioner deems material and necessary.

The Labor Commissioner is to make available a template for employers to follow for such a document. This new requirement does not eliminate existing employer notice rules.

Contact a California labor law attorney with any questions about compliance with and implementation of this new law.

California Governor Jerry Brown recently signed Senate Bill 299 into law extending health insurance coverage benefits for employees out on pregnancy disability leave, effective January 1, 2012. As covered in “Pregnancy Disability Leave,” California employers with five or more persons on payroll (whether full- or part-time) must provide any female employee up to four months of unpaid leave for her pregnancy, delivery and newborn care. (California employers with 50 or more on payroll must also provide any qualified female employee with up to 12 additional weeks of medically required maternity leave under the California Family Rights Act (CFRA) or the federal Family and Medical Leave Act (FMLA).)

Currently, employers may opt to make group health insurance coverage available to their workers. The new law requires that if a California employer provides such benefits, it must continue to make them available to a pregnant or new mom out on pregnancy disability leave. The employer must continue that coverage on the same terms and conditions applied to active employees. For example, if the employer normally pays an employee’s premium in full when she’s actively on the job, that company must now continue to pay full premium while she’s out on the four month pregnancy leave.

A business may recover from the employee the premiums it paid to maintain such coverage during the leave if the worker fails to return at the end of the four month maximum period and if that failure was not due to exercise of additional leave rights under FMLA/CFRA or not due to a circumstance beyond the employee’s control. .

Employers should review the new law and contact a California labor law attorney if they have any questions on the new requirements.

January 1, 2012

Effective January 1, 2012, California Assembly Bill AB 469 will require private employers to distribute a document “in the language the employer normally uses to communicate employment-related information” to all hourly employees at the time of their hire.

The written notice must include:

• The rate or rates of pay and basis thereof, whether paid by the hour, shift, day, week, salary, piece, commission, or otherwise, including any rates for overtime, as applicable;
• The regular payday designated by the employer;
• Allowances, if any, claimed as part of the minimum wage, including meal or lodging allowances;
• The employer’s name, including any “doing business as” names used by the employer;
• The physical address of the employer’s main office or principal place of business, and a mailing address, if different;
• The employer’s telephone number;
• The name, address, and telephone number of the employer’s workers’ compensation insurance carrier; and
• Any other information the California Labor Commissioner deems material and necessary.

The Labor Commissioner is to make available a template for employers to follow for such a document. This new requirement does not eliminate existing employer notice rules.

Contact a California labor law attorney with any questions about compliance with and implementation of this new law.

January 1, 2012

The Internal Revenue Service (IRS) recently announced an increase in the optional standard mileage rate from 51 cents to 55.5 cents per mile for all business miles driven from July 1, 2011 through December 31, 2011. This is highest IRS standard rate since the latter part of 2008. www.irs.gov.

Although the IRS typically updates its new rates each fall for the next calendar year, the IRS chose a mid-year increase due to increased gasoline prices, which IRS Commissioner Doug Shulman stated “are having a major impact on individual Americans.”

While gasoline prices are a significant factor in its calculations, the IRS also looks at depreciation, insurance and other fixed and variable costs when setting mileage rates.

Employers using the IRS standard mileage rate to reimburse employees should of course note the increase.

Employers should also take the opportunity to verify each employee driving on company time possesses a current driver’s license and personal auto liability coverage in the amounts required by applicable state law.

December 31, 2011

Employer Precautions

There is very little more precious to an individual than his or her employment. For management and personnel directors facing poor economic times, there is probably very little more difficult than ending a productive worker’s relationship when the company simply can no longer afford to carry that position.

Handling that final meeting with a departing employee can be a manager’s diplomatic challenge akin to negotiating the end of a marriage or other major international conflict.  Faced with the intense personal pride a person commonly derives from gainful employment, managers can fumble a layoff by either being too personal with —  or too coldly removed from — the outgoing employee  in the transition.

Where the manager fails to walk the fine line of credibly conveying the economic realities that have forced the layoff decision while appropriately acknowledging the departing individual’s worth, that manager may be deeply motivating that worker to find some ground, any ground,  for a large legal claim to “get even.”

Layoffs of a significant percentage of a company’s workforce raise the stakes and probability that one or more suits may follow suit.  For example, law firm Seyfarth Shaw’s 2009 Annual Workplace Class Action Litigation Report found that the 2008 financial meltdown caused a sharp jump in workplace class action litigation, especially age discrimination and Worker Adjustment and Retraining Notification (WARN) Act claims.  (WARN is a federal law applicable to companies with 100 or more employees, requiring minimum advance notice and other opportunities to workers slated for layoff.)

It is thus important for a company planning to lay off any number of employees to take effective precautions that should limit potential wrongful termination and discrimination claims.  These include:

Document a Methodology for Selection: Management should establish a sensible and consistent system for business-based selection of individuals to be let go.  Guidelines that seek to balance seniority with objective indicators of employee performance are a common approach.

Develop a Viable System for Performance Appraisals: Management should thus create and consistently conduct performance evaluations that are as objective and impartial as possible.  See also, “Grading Employee Performance ”  A company that has been able to compile such evaluations is almost certainly better equipped to deal with the difficult selection process of who must go in the event of a significant business downturn.

Maintain Accurate and Relevant Job Descriptions:  A system for performance evaluation will have limited value unless accompanied by thorough, updated, and clearly stated descriptions of the duties, prerogatives and required products/results for each position in the company.   Layoff decisions based on relative, objectively evaluated proficiency in each person’s well-defined post should be very difficult to challenge as unlawfully discriminatory against a particular gender, ethnicity, age, etc.  Such criteria are of course also useful in hiring, compensation and promotions.

Experienced labor counsel can provide further valuable guidance on the often delicate task of company layoffs.

30 Dec 2011

December 30, 2011