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3220 M Street Telephone: (916) 492-6555 Facsimile: (916) 492-6556 ©2007 The Ison Law Group |
EMPLOYMENT
LAW UPDATE — GOVERNOR’S NEW LAWS
Last week, Governor
Arnold Schwarzenegger signed a series of new employment laws that, for the most
part, have been welcomed by the business community. The following is a summary of the new laws:
SB 812: Pharmacists/Alternative Workweek Schedules
SB 812 creates a new California
Labor Code section 1186.5, which clarifies that all pharmacists are permitted
to adopt alternative workweek schedules (AWS) as provided by Industrial Welfare
Commission (IWC) Wage Order 4.
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/Prevailing Wages
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
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.