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3220 M Street Telephone: (916) 492-6555 Facsimile: (916) 492-6556 ©2008 The Ison Law Group |
2008 EMPLOYMENT LAW UPDATE
LEGISLATIVE UPDATES
Effective January 1, 2008 (unless otherwise
noted), various new laws may have an impact on
AB 1835: Minimum Wage Increase
Adopted in 2007, AB
1835 raises the state minimum wage from $7.50 to $8.00 per hour effective
January 1, 2008.
SB 812:
Pharmacists/Alternative Workweek Schedules
SB 812 creates a
new California Labor Code section 1186.5, which clarifies that all
Pharmacists,
depending on the nature of their work, may be regulated by IWC Wage Order 4,
relating to professional, technical, clerical, mechanical and similar occupations
(including employees in the health care industry), or by IWC Wage Order 7,
which covers employees in the mercantile industry. Because the AWS rules differ under IWC Wage
Orders 4 and 7, employers in the mercantile industry have been confused as to
what type of AWS is permitted.
The new Labor Code
section 1186.5 expressly permits pharmacists employed in the mercantile
industry under IWC Wage Order 7 to adopt the same alternative workweek schedules
allowed by IWC Wage Order 4, including alternative workweeks that can be
adopted by employees working in the health care industry.
AB 392:
Military Spouse Leave
AB 392 requires
certain employers to allow an employee who is the spouse of a member of the
Armed Forces, National Guard, or Reserves to take up to 10 days of unpaid leave
while the member of the Armed Forces, National Guard, or Reserves is home on
leave.
AB 392 enacts a new
statute: California Military and
Veterans Code section 395.10. The
statute applies to employers with 25 or more employees, and requires the
employer to provide leave to “qualified employees.” To be eligible for leave under AB 392, an
employee must work an average of 20 or more hours per week and must be married
to a member of the Armed Forces, National Guard or Reserves deployed during a
period of military conflict to an area designated as a combat theater or zone.
Qualified employees
are eligible to take time off during “qualified leave periods,” defined as
periods during which the soldier-spouses are on leave from deployment.
An employer may not
retaliate against any employee for requesting or taking the leave provided by
AB 392.
SB 929:
Computer Professionals
SB 929 amends
California Labor Code section 515.5, which creates an overtime exemption for
certain highly skilled computer professionals who are primarily engaged in
intellectual or creative work that requires the exercise of discretion and
independent judgment. Job titles that
may, in certain circumstances, fall into this overtime exemption include
computer programmers, systems analysts, applications programmers and software
engineers.
To qualify for the
computer professional overtime exemption, the employee must receive a specified
minimum hourly wage (which may be adjusted each year).
Effective January
1, 2008, SB 929 reduces the minimum hourly wage for application of the computer
professional exemption from $49.77 to $36.00 per hour. The lower hourly wage threshold is intended
to help the computer programming industry in
SB 929: Prevailing Wages
SB 929 also amends
California Labor Code section 1773.9, which requires contractors and
subcontractors performing work on certain public works to pay to their workers
the “prevailing” rate of per diem wages.
The prevailing rate includes both hourly wages and employee benefits,
and is determined by the Director of Industrial Relations (DIR) with reference
to collective bargaining agreements (CBA), wage rates for federal public works,
and data from labor and employer groups.
If the DIR determines that the general prevailing rate of per diem wages
is the rate established by a CBA, and that the CBA contains pre-determined changes
during its term that will affect the prevailing rate, those changes must be
incorporated by the DIR into the prevailing wage determination.
SB 929 authorizes
contractors and subcontractors, whenever the DIR prevailing wage determination
contains a pre-determined change but does not specify how the change will be
allocated between hourly wages and employer payments for benefits, to allocate
payments equal to that change to either hourly wages or benefits for a
specified time period, as provided. SB 929 also provides that, if the
allocation of a pre-determined change is subsequently altered by the CBA that
formed the basis of the prevailing wage determination, a contractor or
subcontractor may allocate payments of not less than the amount of the definite
and pre-determined change in accordance with either the originally published
allocation or the allocation as altered in the CBA.
These changes are
designed to protect employers from frivolous lawsuits that arose from
inadvertently failure to comply with certain technical provisions of the former
Labor Code section 1773.9.
SB 14:
National Guard Participation in Cal-PERS
SB 14 permits
officers, warrant officers, and enlisted personnel of the California National
Guard to make a written election to become members of the California Public Employees’
Retirement System (Cal-PERS).
AB 338:
Workers Compensation/Temporary Disability Benefits
AB 338 amends
California Labor Code section 4656, which sets limits on temporary disability
benefits under
Currently, Labor
Code section 4656 caps an injured worker’s eligibility for temporary disability
benefits at 104 weeks. As interpreted by
the Workers’ Compensation Appeals Board (WCAB), Labor Code section 4656
generally prohibits aggregate disability payments for a single injury occurring
on or after April 19, 2004, from extending for more than 104 compensable weeks
within a period of 2 years from the first date of temporary disability
payments.
Effective January
1, 2008, AB 338 amends Labor Code section 4656 to provide that an injured
worker is eligible to receive 104 compensable weeks of aggregate disability
payments within a period of 5 years from the date of the injury.
By allowing 104
weeks of aggregate benefits within five years of the date of injury, AB 338 gives
injured workers adequate time to obtain needed treatment, including surgery,
and return to work after recovery. This
approach also maintains the 104-week cap that has been important in speeding
the claims process and improving return-to-work rates for injured workers.
AB 1298:
Privacy Laws
Effective January
1, 2008, AB 1298 amends
“Medical
Information” is defined as “any information regarding an individual’s medical
history, mental or physical condition, or medical treatment or diagnosis by a
health care professional.”
“Health Insurance
Information” is defined as “an individual’s health insurance policy number or
subscriber information number, any unique identifier used by a health insurer
to identify the individual, or any information in an individual’s application
and claims history, including any appeals records.”
These provisions
may affect any employer or other entity with computerized employee benefits or
other health data.
AB 1298 also
expands
AB 632:
Health Care “Whistleblowers”
AB 632 amends the
California Health and Safety Code by expanding specific “whistleblower”
provisions to cover physicians and surgeons who complain about unsafe patient
care.
Prior to AB 632, a
physician and surgeon who complained about unsafe patient care was not
expressly protected. AB 632 now
clarifies that health facilities are prohibited from discriminating or
retaliating against any patient, employee, member of the facility’s medical
staff or any other health care worker because that person: (1) presented a
grievance, complaint or report to accrediting entity or any other governmental
agency; or (2) initiated or cooperated in an investigation or proceeding
related to the quality of care, services or conditions at the facility.
AB 632 also
provides that damages for discrimination/retaliation against such
“whistleblowers” may include, but are not limited to, reinstatement and
reimbursement for lost wages and benefits, as well as an award of attorneys’
fees and other legal costs.
SB 1613: Cell Phone Restrictions
Adopted in 2006 but
effective July 1, 2008, SB 1613 prohibits the use of hand-held cellular phones
while operating vehicles, unless the cellular phone is designed and configured
for hands-free listening and talking operation, and is used in that manner
while driving.
SB 1613 provides
that those caught talking on a hand-held cellular phone while driving will be
fined up to $50 per violation. The new
law does create exceptions for individuals using a hand-held cellular phone to
contact law enforcement or other public safety agencies for emergency purposes,
and for emergency services professionals during the operation of authorized
emergency vehicles.
AB 2695:
Expanded Workplace Violence Protections
Adopted in 2006 but
effective January 1, 2008, AB 2695 extends the scope of an employer’s right to
seek workplace violence restraining orders on behalf of employees under Code of
Civil Procedure section 527.8. AB 2695
now authorizes employers to seek restraining orders that protect multiple
worksites and orders that protect multiple employees. AB 2695 also authorizes the employer to seek
a restraining order even if the employee who is directly threatened does not
want to pursue a restraining order, if the employer reasonably believes there
is a credible threat of violence against others in the workplace.
AB 2440: Child Support
Adopted in 2006 but
effective January 1, 2008, AB 2440 creates stiff penalties of up to three times
the amount of the assistance provided, subject to a maximum of the entire
support obligation, for employers who assist employees or contractors in
avoiding child support obligations. AB
2440 applies where an employer knew or should have known that the individual
has a child support obligation and fails to report the individual’s hire date,
employment, and/or wages to the California Employment Development Department.