Recent Developments of Interest in Employment Law in California

The following information is intended as a general discussion. It is not to be relied upon as legal advice in any particular matter. If you have questions regarding a particular matter, please call my office to make an appointment.

Overtime Law:
In general, this change in the Labor Code requires employers to pay time and one-half to non-exempt employees for all daily hours in excess of eight, all hours over forty in a work week and the first eight hours of work on a seventh day . Employers must pay double time to all non-exempt employees for all hours in excess of twelve and after eight hours on the seventh day of work in the work week. In addition, the new law restricts the use of comp time off in lieu of daily overtime. The new law provides that no hourly employees may be exempt from the overtime requirements and it substantially raises the monthly salary required for the overtime exemption to $ 1993.33. Effective 1/1/00. Please consult www.dir.ca.gov/ for Industry Specific Industrial Welfare Orders.

Employment Reporting Requirements:
Employers must now report new hires to the Employment Development Department within twenty days of the start of work. Employers must report the employee's full name, address, social security number, start of work date, the employer's name, address, its California Employer Account Number and its Federal Employer Identification Number. The report should be filed with the Employment Development Department, P.O. Box 997016 MIC 23, West Sacramento, Ca. 95799-7016 or by fax: 916-653-5214. You can contact www.edd.ca.gov/ for further information or to download forms.

An employer must also give an employee written notice regarding the employee's change in status no later than the effective date of discharge or lay-off or the start date of a leave of absence. This notice must contain the employer's name, the employee's name, the employee's social security number, the effective date of the action and whether the action is a lay-off, discharge, leave of absence or change in status from employee to independent contractor. Concurrently, an employer should provide the employee with the Employment Development Department form entitled "Notice to Employees". This form, available from the Department at no cost, advises employees of their rights to unemployment and disability insurance.

Sick leave:
Employers are now required to permit employees to use the amount of sick leave which he or she would accrue during a six month period at his or her rate of entitlement to attend to the illness of an employee's child, parent or spouse. This law also prohibits an employer from discharging, or otherwise discriminating against, the employee for using his or her sick leave in this manner. Please consult Labor Code, Section 233, for more information.

New protection for abuse survivors:
Employees who are victims of crimes have the right to take time off to appear or testify in court. Employers are forbidden from retaliating against employees who exercise this right or who take time off from work in order to obtain or attempt to obtain "any relief ...to help ensure the health, safety or welfare of a domestic violence victim or his or her child." Please consult Labor Code, Section 230, for more information.

Lawful off-work activities:
Labor Code, Section 96, may afford new protection for employees' lawful conduct occurring during non-working hours away from the employer's premises. The new law authorizes the Labor Commissioner to accept claims for wages lost as a result of a demotion, suspension or discharge as a result of lawful off-work conduct. Please consult Labor Code, Section 96, for more information.

The Fair Employment and Housing Act:
Pursuant to the new amendments in the Fair Employment and Housing Act ("FEHA"), it now illegal to discriminate based on a perception that a person has any characteristic protected by FEHA or that the person is associated with one who has or is perceived to have such characteristics. Prohibitions against discrimination and/or harassment based on sexual orientation have also been added to FEHA. In addition, employers must grant pregnant workers reasonable requests for workplace accommodations.

Lastly, the new amendments define the term "supervisor" as an individual having the authority, in the interest of the employer, to hire, transfer, suspend, layoff, recall, promote, discharge, assign or reward or discipline other employees or the responsibility to direct them or to adjust the grievances or effectively recommend that action if, in the connection with the foregoing, the exercise of that authority is not merely of a routine or clerical nature but requires the use of independent judgment. If a "supervisor" knows or should have known of unlawful harassment and fails to take immediate or appropriate corrective action, the employer may be liable under FEHA.

Age Discrimination:
Replacement by an older person does not automatically preclude a finding of age discrimination when circumstantial evidence of age discrimination supports the jury's verdict. Evidence of comments reflecting age bias, evidence that an employer's stated reasons for termination are false, evidence that all or most of the new hires after the employee's termination were substantially younger and expert testimony on statistics is an adequate basis for finding age discrimination.
Begnal v. Canfield & Associates, Inc. (2000) 78 Cal.App.4th 66.

See also Government Code, Section 12941.1 which prohibits employers from using salary as a basis for terminating older workers as a group.

FEHA-Statute of limitations:
The Court found that the employer did not have an express, openly espoused policy that was alleged to be discriminatory and which continued into the limitations period. The Court held that, where the employee knew or should have known of the discriminatory nature of the unlawful practices at the time they occurred, the employee cannot rely on the "continuing violation doctrine" to extend the one year limitations period. Lachi Delisa Richards v. CH2M Hill, Inc. 2000 Daily Journal D.A.R. 3379 (4/3/00).

FEHA-Retaliation:
The United States District Court, Northern District of California, has held that the Fair Employment & Housing Act imposes personal liability on supervisors who engage in retaliation. Peterson v. Santa Clara Valley Medical Center 2000 Daily Journal D.A.R. 1649 (2/14/00). This section of FEHA makes it unlawful for employers and persons to discharge, expel or otherwise discriminate against any person because the person has opposed any practices forbidden by FEHA or because the person has filed a complaint, testified or assisted in any proceeding under FEHA.

For further information on recent decisions by the California Supreme Court and California Court of Appeal, please consult www.courtinfo.ca.gov/courts.