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The Employment Law Alert is one of many Orrick publications designed to provide our clients and contacts with information they can use to more effectively manage their businesses and access Orrick's expertise. Please contact Lori Soldinger for information on our other publications. You are
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January 2005IS YOUR COMPANY IN COMPLIANCE?NEW CALIFORNIA EMPLOYMENT LEGISLATION FOR 2005: A BRIEF SUMMARY OF SIGNIFICANT DEVELOPMENTSAlthough California's new Governor, Arnold Schwarzenegger, spared California employers from the volume of new employment legislation that usually overwhelms them at this time of year, there are still several new laws that are particularly noteworthy and require attention from employers doing business in California. A brief summary of the more noteworthy new laws follows. The laws all took effect on January 1, 2005, unless otherwise noted. To go directly to the summary of any of the new laws discussed in this Alert, click on the links below: MANDATORY
SEXUAL HARASSMENT TRAINING FOR SUPERVISORS (A.B. 1825, Reyes) 2 SON OF "SUE YOUR BOSS" (S.B.
1809) 2 DOMESTIC PARTNER'S RIGHTS (A.B. 205,
GOLDBERG) 2 MANDATORY HEALTH CARE COVERAGE
(PROPOSITION 72) 3 DOMESTIC PARTNER'S HEALTH CARE AND
INSURANCE BENEFITS (A.B. 2208, KEHOE) 3 PUNITIVE DAMAGES (S.B. 1102) 3 RETALIATION: ASSIGNMENT ORDERS (A.B.
1706, COMMITTEE ON JUDICIARY) 3 UNEMPLOYMENT COMPENSATION: WARN PAYMENTS
(A.B. 2028, KORETZ) 3 DISCRIMINATION (A.B. 2900,
LAIRD) 3 WAGE AND HOUR: ITEMIZED STATEMENTS (S.B.
1618) 3 MANDATORY SEXUAL HARASSMENT TRAINING FOR SUPERVISORS (A.B. 1825, REYES)This law requires an employer that regularly employs 50 or more employees or other workers who provide services by contract to provide 2 hours of sexual harassment training to "supervisory" employees by no later than January 1, 2006, and every 2 years thereafter. It further requires that the training be provided to any new supervisor within 6 months of his or her appointment to a supervisory position. This may
seem relatively straightforward, but the apparent simplicity is deceptive.
Following are a few examples of the questions raised by this new law that
should merit your immediate consideration and attention: What Does "Effective And Interactive"
Mean?
The law requires two hours of effective and interactive training. What does "interactive" mean? Does on-line training suffice? How do you ensure the training is sufficiently effective and interactive to pass muster? Who Is A Supervisory Employee?Similarly, the new law does not itself specifically define who is a "supervisory" employee to whom training must be provided. How then, should you determine if any particular employee is considered a supervisor under the statute? How Does our company ensure That Our Trainers Have The Skills Specifically Required By The Statute?Moreover, the law requires that the trainers have knowledge and expertise in the prevention of harassment, discrimination, and retaliation. How do you make sure that your trainer is sufficiently skilled so as to satisfy the statute? How Do we Even Know if our Company Is Subject To the New Law?The statute does not specify that the requisite 50 employees must be employed in California, and does not define the "regularly employed" requirement. Instead it simply broadly invokes coverage if an employer employs either 50 employees or 50 workers providing services under contract. This definition raises many questions for employers without very large California workforces. For example, are part-time workers included? What if the employer employs 50 persons total, but only a few in California? What if it so employed 50 persons throughout the year, but employs fewer persons at the time training would be required for any particular supervisor? Must it still comply? Is This All The Training Our Company Must Provide?Of course, the employer must remember that it is always sound employment practice to provide anti-harassment and discrimination training to all employees, and this law merely provides a minimum amount of training that must be provided. If it is not provided, employers will face an order from the Department of Fair Employment and Housing to comply. Employers should know, however, that even full compliance with this law, under its express terms, will not insulate an employer from liability in the event of a sexual harassment claim. However, the law also provides that it will not result in a finding of liability for such a claim if the training is not provided. Nevertheless, an employer might still have to explain - and have the trier of fact in a sexual harassment suit hear - that the employer failed to provide training required by law. California employers should soon begin to consider the issues that are raised with respect to the application of the new law to their workforces. In addition, they should begin considering record-keeping, documentation and tracking issues, and put in place programs to ensure not only that employees are provided with the initial training, but that training is calendared within 6 months for new supervisors, and at two-year intervals for each supervisor in the workforce. Orrick has developed a cost-effective A.B. 1825 compliant training program and is ready to assist you with any technical questions about the law and also to provide, upon request, A.B. 1825 training for your company's supervisors, or to design and conduct broader training programs. If you any questions about the new law, or if you would like to find out more about our A.B. 1825 compliance program, feel free to contact any of the Orrick attorneys listed below. To view the full text of this new law click here.
SON OF "SUE YOUR BOSS" (S.B. 1809, DUNN)As we previously reported, California employers won partial relief from the so-called "Sue Your Boss Law," when Governor Schwarzenegger signed Senate Bill 1809 into law as part of the state budget deal. As an urgency measure, the bill took effect immediately. Among other things, the bill addressed one of the key criticisms of the original "Sue Your Boss" law by providing that employees may not bring an action for certain technical Labor Code violations involving posting, notice, agency reporting, or filing requirements, except where the filing or reporting requirement involves mandatory payroll or workplace injury reporting. Moreover, the law established reporting, exhaustion, and/or notice procedures that employees must satisfy, depending upon the violation, before they may bring suit. The amendments also authorized a court to award lesser amounts in penalties if to do so would result in an award that is "unjust, arbitrary and oppressive, or confiscatory." Moreover, the courts are required to approve any proposed settlements to ensure that they are at least as effective as the protections provided by state and federal law. The amendments also established new anti-retaliation provisions. For the full text of our previous alert on this new law, you may click here. To view the full text of this bill click here.
DOMESTIC PARTNER'S RIGHTS (A.B. 205, GOLDBERG)Although this bill was enacted last year, it took effect only as of January 1, 2005. This bill, the "Domestic Partner's Rights and Responsibilities Act," entitles registered domestic partners to virtually all of the rights, benefits and responsibilities granted to married persons under state law. A Senate Rules Committee analysis of the final version of the bill explains that the law was intended to grant registered domestic partners the right to "benefits, such as family care and medical leave, medical, dental, life and disability insurance, pension and death benefits for surviving partners of firefighters and police officers," together with protection from discrimination in "housing and employment," and the "right to receive government provided or government regulated benefits, such as workers' compensation, public assistance, transfer of licenses upon death of a domestic partner." Because the changes impose significant new rights and responsibilities for registered domestic partners, it did not take effect until this year, permitting last year to be used for the mailing of notices explaining the new responsibilities to all registered partners, so as to give them time to opt out of the new law's benefits and obligations, if they so choose, before they took effect. We also reported last year that a number of judicial challenges to the implementation of this bill had been filed. Recently, several of these lawsuits were dismissed on summary judgment. This year, Sacramento Superior Court Judge Loren McMaster, on September 8, 2004, upheld the new law and determined that it did not conflict with Proposition 22 (codified at Family Code section 308.5) which provides that only "marriage between a man and a woman is valid or recognized in California." Employers
should contact counsel if they have any questions regarding the
application of A.B. 205 to their workplace. Among the areas employers should
be considering with respect to A.B. 205 compliance are, for example,
health and benefit plans (except, arguably, those that are governed by
ERISA), CFRA leave entitlements, CalCOBRA, and other workplace benefits or
policies not governed by federal law.
To view the full text of this bill click here. |
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