New California Employment Laws and Requirements for 2009

Source: Rao Ongaro Burtt & Tiliakos

January 1, 2009

Below is a summary of new employment laws and requirements applicable to private California employers in 2009. We at Rao Ongaro LLP are always available to answer any question you may have regarding these and any other California workplace laws and requirements.

  • Cell Phones: Text-based communication while driving, including e-mail, and text and instant messaging is prohibited.
  • Computer Professionals Salary Test: Labor Code § 515.5 was amended to allow payment to computer professionals as monthly or annual salary (before, computer professionals had to earn a minimum hourly rate). In order to be exempt, the hourly rate must be $36, the minimum monthly salary must be $6,250, and the minimum annual salary must be $75,000.
  • Disability Access: Effective January 1, 2009 (some provisions delayed until July 1, 2009), damages will be provided to individuals only for a violation of their personally encountered denial of access. Among other things, S.B. 1608: (a) establishes a 19-member California Commission on Disability Access; and (b) requires a court to issue an order that grants a 90-day stay, schedules an early evaluation conference, and directs the employer to file certified access specialist inspection reports if the employer has satisfied certain requirement relating to inspection of the site at issue.
  • Federal ADA Amendments: The new amendments do not affect your duties under California law. For example, the Fair Employment and Housing Act defines disability has something that limits an employee’s ability to perform the essential functions of a job without reference to ameliorative effects of mitigating factors. This is a new federal change, but not new to California employers.
  • Federal FMLA Regulations: New U.S. Department of Labor regulations become effective on January 16, 2009. The new regulations cover FMLA leave related to military service, including a definition of “exigency” and when employees may take FMLA leave. Other changes include: (a) new poster and notice requirements; (b) eligibility for leave if the employee has a break in service; (c) when bonus payments may be denied to an FMLA employee; (d) increased penalties; (e) requirement that employers indicate how much time will be used as FMLA; (f) new forms for certification of an employee’s own serious illness/injury and for the employee’s family member (note: California prohibits the release of medical information).
  • Federal Genetic Information Nondiscrimination Act of 2008: Insurers and employers are prohibited from using genetic information to discriminate against insureds or employees.
  • Form I-9: Passport cards issued by Homeland Security may be used as a “List A” document to verify employment.
  • Invalid Wage Waivers: Labor Code § 206.5 was amended making null and void the execution of any release concerning wages due. The new language is as follows: “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.”
  • IRS Mileage Rate: Increased to 55 cents per mile.
  • New Posters:
    • Equal Employment Opportunity is The Law (federal);
    • Notice to Employees from state Employment Development Department (EDD);
    • Family and Medical Leave (federal).
  • New Pamphlets
    • Workers’ Compensation;
    • State Disability Insurance (SDI);
    • Paid Family Leave (PFL);
    • Unemployment Insurance (UI).
    Note: The workers’ compensation, SDI and PFL pamphlets must be given to all new hires. The PFL, UI and SDI pamphlets must be given to employees who take a leave of absence. Employers must report new employees to the EDD within 20 days of the first work date (there is a new DE 34 form). The UI pamphlet must be given to all employees who are terminated.

  • No Individual Supervisor Liability for Retaliation: Individual supervisors are not personally liable for retaliation under the Fair Employment & Housing Act. A “supervisor” is “any individual having the authority to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them, or to adjust their grievances, or effectively to recommend that action, if, in connection with the foregoing, the exercise of that authority is not of a merely routine or clerical nature, but requires the use of independent judgment.” However, individuals who are personally liable for harassment in violation of the FEHA also may be liable for retaliating against someone who opposes or reports the same harassment.
  • Non-Resident Overtime: California non-residents are entitled to overtime pay under California law (e.g., eight-hour day) for work performed in California.
  • Part Time Work While on CFRA Leave: Under the California Family Rights Act, an employee is not automatically disqualified from taking leave for a “serious health condition” just because the employee maintains a part-time job for another employer performing similar work.
  • Political Speech: New NLRB guidelines provide: (a) non-disruptive political advocacy for or against a specific issue, related to a specifically identified employment concern that takes place during an employees’ own time and in non-work areas is protected; (b) 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 (c) leaving or stopping work to engage in political advocacy for or against a specific issue, related to a specifically identified employment concern also may be subject to restrictions imposed by the employer.
  • San Francisco Commuter Benefits: San Francisco employers with 20 or more employees must provide commuter benefits to employees who work at least 10 hours per workweek. Employees must be offered either: (a) a pre-tax election of a maximum of $110 per month; (b) an employer-provided transportation pass (or reimbursement for one) equal in value to $45 (or more) per month; or (c) employer provided transportation at no cost to employees.
  • San Francisco Health Care Ordinance: This ordinance is not pre-empted by ERISA says the Ninth Circuit. All private employers with more than 20 employees must pay an assigned amount of money toward employee health care or pay the city a fee based on the number of employees and hours worked.
  • San Francisco Minimum Wage: Increased to $9.79 per hour.
  • Temporary Service Employees: Labor Code § 201.3 was amended to provide that wages for employees of temporary services employers 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. The pay requirement does not apply to employees assigned to a client for over 90 consecutive calendar days (unless the employer pays the employee weekly).
  • Third Party Sexual Harassment Investigations: Third parties who conduct sexual harassment investigations should be a California licensed private investigator or attorney.
  • Workers’ Compensation: Labor Code § 6409.1 amended the reporting of work related injuries and illnesses. The regulations are yet to be finalized. Once they are, insured employers must file a form approved by the Division of Workers’ Compensation (DWC) with the DWC, and self-insured employers must use a new electronic form by a deadline to be determined by the DWC.

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