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Below is a recap
by TPO of the main HOT topics Dennis and Marlene explained
to the audience.
California Hot Topics
CA Hot Topic # 1 – Hiring
Away Competitor’s Employees
 Background: In
the past it had been established that employers are
generally free to pursue (solicit) the at-will employees of
other companies for employment. Where a company could run
afoul of that general allowance is if while pursuing those
employees, the competitor commits an “independently wrongful
act,” such as trade secret misappropriation, fraud, or
antitrust violation.
New Information from 2007:
Employers do not have to allege
independently wrongful act beyond alleged solicitation of
employees to state a claim for intentional interference with
contract if employee’s contract is not for at-will
employment. (CRST Van Expedited, Inc. v. Werner Enterprises,
Inc. - March 15, 2007, 9th Cir.)
Littler’s Suggestion for Employers:
Consider if employment
contracts for specific terms of employment might at times be
more beneficial than at-will employment.
CA Hot Topic # 2 –
Disability Discrimination
Background: The
California Fair Employment and Housing Act (FEHA) provides
that employers do not have to hire or continue to employ
"disabled" individuals who cannot perform "essential job
functions" even with "reasonable accommodation."
New Information from 2007:
The burden is on the plaintiff employee to prove s/he
can perform the essential functions of the job. (Green v.
State of California - August 23, 2007, California Supreme
Court)
Littler’s Suggestion for Employers:
Make documented and informed decisions when refusing
to hire or terminate employees unable to perform essential
job functions.
CA Hot Topic # 3 – 2007
Legislation
CA Minimum Wage Increase (AB 1835):
Increases to $8.00 per hour on 1/1/08.
Considerations: The white collar exemption salary
requirement increases to $640/week, $2,733.33/month and
$33,280/year.
Cell Phones (AB 1613):
Drivers must use a “hands free” device when talking on a
cell phone and driving – enforcement begins 7/1/08.
Considerations: Employers requiring the use of cell
phones should address the issue in handbooks and may need to
reimburse the cost of procuring hands free devices.
Lower Rate for Exempt Computer
Software Professionals (AB 929): Reduced the
minimum hourly rate to $36/hour for ALL hours worked.
Military Spouses Leave (AB 392):
Public and private employers who employ over 25 employees
must provide up to 10 days of unpaid leave for a "qualified"
employee if the employee's military spouse is on a leave
from deployment in a combat zone with the active duty,
reserve military or National Guard during a period of
military conflict.
Considerations: In CA, “spouse” includes registered
domestic partner.
CA Hot Topic # 4 – Net
Profit Based Incentive Plans
 Background: In the past,
companies who wanted to take their new income, subtract out
net expenses and then disperse the profits to employees were
prohibited from doing so for several reasons; of
significance was the issue of not being able to deduct
Workers’ Comp costs from employees. The inability to share
profits with employees and have them understand the
importance of expense management was frustrating for
employers.
New Information from 2007:
The CA Supreme Court now upholds the legality of
net-profit based incentive plans. (Prachasaisoradej v.
Ralphs Grocery Company - California Supreme Court, Aug. 23,
2007)
Littler’s Suggestions for
Employers: Make sure that such plans are based on
store/division/company-wide basis, not based on individuals
or very small groups. Be careful not to apply a subtle
pressure to not file Workers’ Comp. claims.
CA Hot Topic # 5 – Employee
Reimbursements
New Information from 2007:
Employers can reimburse employees for business-related
expenses by paying increased compensation on a consistent
lump sum amount.
Littler’s Suggestions for
Employers: Ensure that the amount is greater than
the actual expenses incurred by the employee and allow a
mechanism for employees to challenge any alleged
under-payments. On wage statements, separately identify the
amounts that represent payment for labor performed and the
amounts that represent reimbursement for business expenses.
HOT OFF THE CALIFORNIA PRESS in early 2008!
1.
DFEH
moves into the 21st Century and allows employees
to make an appointment to file a formal complaint of
employment-related discrimination or harassment online at www.dfeh.ca.gov.
Previously, those wanting to file complaints could only do
so by phone 8 a.m. to 4 p.m. weekdays. The new automated
system poses a series of questions to determine whether the
situation falls within the department's jurisdiction and
allows users to select an appointment time for a telephone
or in-person interview at the nearest Department of Fair
Employment & Housing office.
2.
Medical Marijuana and Pre-Employment Drug Tests:
Because marijuana use is still unlawful under Federal law,
employers can deny employment when pre-employment drug tests
show marijuana use, even where the applicant is using it for
medicinal purposes.
Federal Hot Topics
FED Hot Topic # 1 – Pay
Discrimination
Background: Title VII
claims (discrimination claims based on race, color,
religion, sex, or national origin) have a 180 day statute of
limitations (or 300 days in a “deferral” state).
New Information from 2007:
The statute of limitations was clarified in that for the
plaintiff to recover, it must be shown that a pay decision
within the charge-filing period was discriminatory
(Ledbetter v. Goodyear Tire & Rubber Co., Inc. - U.S.
Supreme Court, May 29, 2007)
Comments: Expect
lobbying efforts to have the case overturned with the thought
that while an employee may have originally had a wage
complaint that began prior to the statute of limitations,
each paycheck should be considered a new violation therefore
allowing the claim to fall within the statute of
limitations.
FED Hot Topic # 2 – Work
Authorization
Background: Some states
want stricter penalties for employment of unauthorized
workers than those under Federal law.
New Information from 2007:
The first state to take matters into its own ha nds is
Arizona with the Nation’s strictest work authorization law
that has two features: 1) imposes a business license penalty
against any employer who knowingly or intentionally hires
unauthorized employees and 2) requires all employers in
Arizona to enroll in the federal government's "Employment
Eligibility Verification Program" in order to confirm the
work eligibility of all new hires
(for
more information on the E-Verify program
click
here).
Suggestions for Employers:
1. Stay
tuned as this is expected to be a hot topic for 2008
2. Seek advice of experienced immigration counsel
regarding state-specific compliance.
3. Be prepared to see a legal action to challenge
Arizona’s authority under federal law to
regulate immigration
4. Use the new Form
I-9 released on November 7, 2007 (click
here to download the new I-9 form)
FED Hot Topic # 3 – Social
Security “No-Match” Letters
Background: For years
employers have received “no-match” letters from the Social
Security Administration (SSA) that the name and number do
not batch the SSA records. Employers were not provided
specific information on if employers should make termination
decisions where employees do not rectify the mis-match.
New Information from 2007:
The Department of Homeland Security (DHS) has taken the
position that one form of constructive knowledge that an
employee lacks employment authorization can occur when the
issue of a "no-match" letter is not resolved. In August of 2007,
DHS published Safe Harbor Procedures
that outlined the
specific steps and timeframes that mis-match situations must
have been resolved or termination would be required. In
October 2007, a Federal Court ruled that the DHS Safe Harbor
Procedures had “serious defects” and consequently suspended
the DHS Safe Harbor Procedures.
Littler’s Suggestions for
Employers: Stay tuned! The DHS is expected to
make revisions by March 2008 which they hope satisfy the
court’s concerns.
FED Hot Topic # 4 –
Union-Related Communications
Background: Section 7 of
NLRA protects employees’ right to engage in concerted
activities for the purpose of collective bargaining or other
mutual aid or protection.
New Information from 2007:
The National Labor Relations Board
clarified that a company
CAN terminate employees for using company email for union-related
solicitation where
the employer has a policy prohibiting
employees from using company email system "to solicit or
proselytize for commercial
ventures, religious or political
causes, outside organizations, or other non-job-related
solicitations.”
Littler’s Suggestions for
Employers: Before disciplining an employee for
using corporate e-mail to communicate about union-related
activities, an employer should confirm that the
communication, in fact, violated existing policy.
Article written
by: Melissa Irwin,
sphr-ca |
While
you may conduct these investigations “in-house”, there is an
inherent
risk of perceived bias in using your own supervisors or
managers. The best policy, in terms of risk management, is
to use a neutral,
third party investigator who will work with your business or
labor law attorney to develop an effective case strategy.
TPO:
"The Community Foundation for Monterey County has been
a TPO member for over eight years. How do you feel TPO
contributes to Community Foundation’s success?
(…and
by the way, who has the time to start the whole hiring
process over again?)
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