New Year, New Rules

Winter 2009Newsletters California Update - Employment Law

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Employers with operations in California need to be aware of several new laws affecting their businesses. The following is a list of new laws that have recently gone into effect or will take effect in 2009.

New Regulations for Family and Medical Leave Act.

The final version of the federal Family and Medical Leave Act (FMLA) regulations pertaining to military families and qualifying exigencies were published.The regulations now define "qualifying exigency" for purposes of FMLA leave eligibility. Families with active military personnel may now be eligible if their situation meets one of the new qualifying exigencies: short notice deployment, attendance at official military events or activities, arranging or providing childcare, attending school or daycare meetings, handling financial and legal matters, and rest and recuperation visits when the soldier is on leave.

No "Texting" While Driving.

Starting January 1, 2009, text-based communication while driving is prohibited as well as non-hands-free cell phone use, with the same penalties – $20 for the first offense and $50 for subsequent offenses. Specifically, the law prohibits writing, sending or reading text-based communication, including text messaging, instant messaging and e-mail, on a wireless device or cell phone while driving.

Waivers Invalid on Account of Wages Due.

A bill amended California Labor Code 206.5 making null and void the execution of any release on account of wages due. In other words, an employer may not ask an employee to waive a claim for wages owed to the employee. Employers who violate this law are guilty of a misdemeanor. The new law – effective January 1, 2009 – adds the following language: "For purposes of this section, ‘execution of a release' includes requiring an employee, as a condition of being paid, to execute a statement of the hours he or she worked during a pay period, which the employer knows to be false."

New Wage Requirements for Temporary Employees.

Wages for employees of temporary service agencies must be paid weekly, or daily if an employee is assigned to a client on a day-to-day basis or to a client engaged in a trade dispute. This requirement does not apply to employees who are assigned to a client for over 90 consecutive calendar days unless the employer pays the employee weekly. Failure to do so can result in civil and criminal penalties.

Workers' Comp Injury Reporting.

California Labor Code section 6409.1 was amended to change the reporting of work-related injuries and illnesses. Currently, form 5020 must be filed with the Division of Labor Statistics and Research (DLSR) within five days of an incident. Once the regulations are finalized, insured employers must file a form as prescribed by the Division of Workers' Compensation (DWC) with the DWC, and self-insured employers must use a new, yet to be created, electronic form within the time specified by the DWC. Amended reports following a death must now be filed with the DLSR instead of the DWC. Insurers must use a new, yet to be created, electronic form with the DWC.The bill specifies that regulations must be created to implement these changes, which will not go into effect until the regulations are finalized.

Passport Cards for Identification on I-9.

The Departments of State and Homeland Security have begun to issue "passport cards" that may be used as a "List A" document to verify employment in accordance with the I-9 form. The passport card is more limited in its uses (e.g., it may not be used for international air travel), but is a valid passport that attests to the U.S. citizenship and identity of the bearer.Accordingly, the card may be used for the Form I-9 process and also can be accepted by employers participating in the E-Verify program. The passport card is considered a List A document that may be presented by newly hired employees during the employment eligibility verification process to show workauthorized status. List A documents are those used by employees to prove both identity and work authorization when completing the Form I-9.

Political Speech.

In July 2008, the National Labor Relations Board (NLRB) issued guidelines to employers concerning employee participation in political advocacy activities and providing guidance to employers regarding when disciplinary actions for these activities may be appropriate.

The memorandum provides that: (1) nondisruptive political advocacy for or against a specific issue related to a specifically identified employment concern that takes place during employees' own time and in non-work areas is protected; (2) on-duty political advocacy for or against a specific issue related to a specifically identified employment concern is subject to restrictions imposed by lawful and neutrally applied work rules; and (3) leaving or stopping work to engage in political advocacy for or against a specific issue related to a specifically identified employment concern may also be subject to restrictions imposed by the employer.

Nutritional Information for Chain Restaurants.

A new law requires chain restaurants with 20 or more facilities in California to post nutritional information. Beginning July 1, 2009, to December 31, 2010, each facility must disclose nutritional information or calorie count information about the food it serves. Nutritional information includes, but is not limited to, all of the following, per standard menu item, as that item is usually prepared and offered for sale:

Total number of calories

Total number of grams of carbohydrates

Total number of grams of saturated fat

Total number of milligrams of sodium

San Francisco Commuter Benefits.

As of December 20, 2008, San Francisco employers with 20 or more employees are required to provide commuter benefits to employees who work at least 10 hours per workweek within the geographic boundaries of San Francisco. This includes offering employees at least one of the following transportation benefits: (1) a pretax election of a maximum of $110 per month, consistent with current federal law; (2) an employer-provided transportation pass (or reimbursement for one) equal in value to $45 (or more) per month; and/or (3) employer provided transportation at no cost to employees. Additional rules and regulations will follow. Failure to comply with this program will result in an "infraction" and monetary fines against your company.