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New Employment Laws for 2009 Employment/Labor By Teresa R. Tracy Once again, California employers face an array of new laws for the new year. Here is a summary of laws both at the federal and state level, including a link to the new I-9 form: IMMIGRATION E-Verify for Covered Federal Contractors Compliance with the new rules requiring covered federal contractors to use the E-Verify system has been postponed to February 20, 2009. The E-Verify requirements cover prime federal contracts that (a) are awarded after January 15, 2009, (b) have a value of at least $100,000; and (c) include a period of performance of at least 120 days. They cover subcontracts for services or construction flowing from covered prime contracts if the subcontract has a value of $3,000 or more. The size of the prime or sub-contractor does not matter in determining coverage. Items that are commercially available off the shelf (including those that only require minor modifications) and bulk cargo contracts are exempted from coverage. The covered contractor must use E-Verify to confirm the status of all new workers hired during the term of the covered contract (regardless of whether they are assigned to work on the covered contract) and all existing workers who are assigned to work on the contract or subcontract and who are not exempt. A covered contractor can elect to verify all employees hired after November 6, 1986 who are working in the United States. Exempt employees include those who (a) were first hired by the employer after November 6, 1986; (b) hold an active security clearance of “confidential, secret or top secret”; workers employed outside the United States; and workers at U.S. embassies and military bases in foreign countries. Under the E-Verify process, the employer enters information from the I-9 form into the E-Verify website. The federal SSA reviews the I-9 information against various databases and either confirms sends a “tentative nonconfirmation” notice to the employer. The E-Verify process then requires the employer to advise the employee of the “tentative nonconfirmation” and provides for a procedure for the employee to contest and/or resolve the issue. If favorable resolution is not reached within the specified period, the worker may be terminated. The procedure has specific and strict timelines and notice requirements. Covered employers should become familiar with its requirements so they can immediately follow them when the regulations become effective. New I-9 Form Effective February 2, 2009, all employers must begin using the revised I-9 form. The revised form is now available on the USCIS website. Click here to access the form. The form can also be obtained by calling the USCIS National Customer Service Center at 1-800-375-5283. The new form must be used for all new hires and to re-verify any employee with expiring employment authorization beginning on that date. However, it should not be used prior to that date. The failure to use the revised form after February 2, 2009 can result in fines. Under the new rule and form, - All documents presented during the verification process must be unexpired, including documents to establish identity and employment authorization (previously, certain expired documents were acceptable, e.g., a U.S. passport); if a document does not contain an expiration date (such as a social security card) it is considered unexpired. - Adds to List A (documents that establish both identity and employment authorization) the following:
- Eliminates from List A the following:
- There is a fourth box in Section I of the form, identifying the status of the employee. An employee can now attest to being a citizen or noncitizen national of the United States. Noncitizen nationals are persons born in American Samoa, certain former citizens of the former Trust Territory of the Pacific Islands and certain children of noncitizen nationals born abroad. - There is a new provision allowing some employees to leave the expiration date blank. The employees who can omit this date are those aliens whose work authorization does not expire (asylees, refugees, certain citizens of the Federated States of Micronesia or the Repbulic of the Marshall Islands). For such employees, re-verification does not apply unless they chose to present in Section 2 evidence of employment authorization that contains an expiration date. Immigration Expenses Although typically immigration issues are dealt with at the federal level, California has jumped into the fray by adopting Civil Code section 1670.7. It provides that any provision of a contract that purports to allow a deduction from a person’s wages for the cost of emigrating and transporting that person to the United States is void as against public policy. While the law is aimed at preventing abuses associated with human trafficking, it can also affect employers who hire foreign professionals or technical workers. Family and Medical Leave Act Regulations The new regulations under the FMLA take effect on January 16, 2009. The new regulations are 762 pages long, substantially change the rights and obligations of both covered employers and employees and have new and revised forms. There is a new poster that should be posted, which is available here. They also implement two important new military family leave entitlements for eligible specified family members. Due to their length and detail, the new regulations cannot be fully summarized here. However, some important highlights are: - Eligibility: If an employee has a break in service that lasts seven years or less, the employee’s service prior to the break must be counted when determining of the employee has been employed for at least 12 months. If employment periods preceding a break in service of more than seven years were caused by the fulfillment of National Guard or Reserve military service obligations or “a written agreement, including a collective bargaining agreement” that concerns the employer’s intention to rehire the employee after the break, those employment periods must also be counted. - Minimum Leave Increments: For intermittent or reduced schedule leaves, the employer now must account for leave “using an increment no greater than the shortest period of time that the employer uses to account for use of other forms of leave,” provided it is not greater than one hour. Thus, it now allows the calculation on leave on the same basis as the employer calculates other employee absences. Under a very narrow exception, if it is “physically impossible” for an employee on an intermittent or reduced schedule leave to start or end work mid-way through a shift, the entire shift may be designated and counted as FMLA leave. - Concurrent Use of Paid Leave: In the past, the FMLA treated paid vacation and personal leave differently than sick leave. Under the new regulations, all paid leave is treated the same way. - Light Duty Work: The new regulations essentially provide that if an employee accepts light duty work in connection with a workers’ compensation injury, the period of light duty work does not count against his/her FMLA entitlement. In addition, the employee may have FMLA job restoration protection well beyond the normal twelve-week period, because the right to job restoration is effectively held in abeyance during the time of the light duty work. - Overtime: If an employee would normally be required to work overtime but cannot due to an FMLA-qualifying condition, the hours that the employee would otherwise have been required to work overtime count against his/her FMLA entitlement. This provision does not, however, apply to voluntary overtime work. - Employer Notice Obligations: The new regulations address four different notifications that an employer must provide in connection with FMLA leave, i.e., a general notice, an eligibility notice (including the identification of at least one reason why a requesting employee is not eligible), a “rights and responsibilities” notice that must be given to an employee each time that an eligibility notice is given to the employee, and a designation notice (which can now be delayed until after a required medical certification form has been returned). - Employee Notice Obligations: The new regulations clarify some of the provisions related to notice and information that an employee is required to provide. - Medical Certification: The new regulations change the timing and other requirements of medical certifications. Among other things, the new regulations allow the employer (but not the employee’s direct supervisor) to contact a healthcare provider directly for purposes of clarification and authentication of medical certification forms after giving the employee an opportunity to cure any deficiencies. - Liability Waivers: The new regulations specifically provide that an employee can voluntarily settle or release any actual or potential FMLA claims (other than prospective waivers) without court or DOL approval. - Military Caregiver Leave: Eligible employees who are family members of covered service member who is recovering from a serious injury or illness incurred in the line of duty on active duty can take up to 26 workweeks of leave in a single 12-month period under certain conditions. - Qualifying Exigency Leave: The new regulations also address leaves of absence for eligible employees with a covered military member serving in the National Guard or Reserves, which might be available for eight different types of a qualifying exigency. California employers should keep in mind that in many cases the California Family Rights Act and other state laws may have provisions that differ from the FMLA and its new regulations. California employers must comply with the most employee-protective provision of any of these laws if applicable. Thus, for example, the CFRA does not specifically allow an employer to directly contact a healthcare provide for information without employee consent, and due to California’s medical confidentiality laws, it is unlikely that a healthcare provider would respond to such a contact. DISABILITY ISSUES Americans with Disabilities Act The definition of “disability” is expanded. Mitigating measures cannot be considered when making disability determinations. Although the new regulations required the EEOC to issue regulations implementing these changes, it has not yet done so. Disability Access under California’s FEHA SB 1608 amended FEHA to allow for damages only to plaintiffs who have personally encountered denial of access, and prevent them from filing lawsuits against establishments they do not intend to use. The beneficial impact of this law is questionable, as it can reasonably be anticipated that the plaintiff will claim to have personally encountered denial of access, and claim that he/she intended to use the establishment being sued. Employers and landlords may have a difficult time refuting these self-serving claims. WAGE AND HOUR LAWS No Release in Order to be Paid California Labor Code section 206.5 has been amended to prohibit an employer from 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. The amendment, for example, would prohibit an employer from requiring an employee, as a condition of being paid, to sign a timesheet that includes a statement to the effect that the employee received all meal breaks, if the employer knows that the employee in fact did not receive all meal breaks. The same problem would arise if the employee had to sign a timesheet as being accurate that did not include certain “off the clock” time if the employer knows that the employee worked the additional time. While it is still a good idea to require an employee to sign a time card, language should be added to the time card in order to comply with the law. An example of such language would be, “I understand that I have the right and obligation to refrain from signing a false record” or “I understand that I have the right and obligation to immediately notify my supervisor if this time card does not accurately reflect the hours that I worked and that I should not sign a time card that does not accurately reflect the hours that I worked.” Computer Professionals California Labor Code section 515.5 has eased the requirements for exemption from overtime pay for certain computer professionals. It now permits a computer professional to be paid on a monthly or annual salary; the monthly minimum salary is $6,587.50, and the minimum annual salary is $79,050. Alternatively, a computer professional may continue to qualify for the overtime exemption if he/she is paid a minimum hourly rate, which is set annually. Effective January 1, 2009, the hourly rate was reduced from $37.94 to $36.00. In either case, the computer professional must meet the other requirements of the law in order to be exempt from overtime pay. Employers should be careful in classifying computer professionals as exempt, since a mistake can be costly. Furthermore, qualification for the overtime pay exemption does not exempt the computer professional from state laws requiring meal and rest breaks. Physicians Labor Code section 515.6 allows certain licensed physicians and surgeons to be exempt from overtime pay if certain criteria are met. One of the criteria is payment at a level that is at least the minimum hourly rate set annually by the state. Effective January 1, 2009, the minimum hourly rate was increased to $69.13 from $65.59. Paychecks for Temporary Employees The California Labor Code has added new section 201.3. This new law clarifies the obligations of temporary staffing firms. Under the new law, with limited exceptions, temporary staffing firms must pay temporary employees on assignment at least once a week, regardless of when their temporary assignment ends. If an assignment lasts longer than 90 consecutive calendar days, the staffing agency does not need to pay the employee every week, but then California’s regular final pay rule applies (i.e., the final paycheck would be due on the employee’s last day of work unless the employee has given less than 72 hours’ notice of resignation). There are also exceptions for certain day laborers and labor dispute replacements, which have to be paid on a daily basis. Employers must also pay wages for work performed during any calendar week no later than on the regular payday during the following calendar week. Lastly, the new law makes it clear that the end of an assignment for a temporary worker does not qualify as a termination or “discharge” from the temporary staffing firm and therefore the firm does not have to pay final wages immediately. Rather, when a temporary assignment ends, the final paycheck is due no later than the payday of the next calendar week. These new provisions only apply to staffing agencies and their temporary employees, as defined in the statute. Thus, temporary employees of employers who are not staffing agencies must still comply with the regular California wage and hour laws regarding the payment of compensation. No Calling or Texting While Driving In addition to prohibiting the use of cell phones while driving unless the driver is using a hands-free device or is calling a public safety agency about an emergency, the California Vehicle Code now makes it a violation to read, write, or send a text message while driving a motor vehicle. The no-texting law carves out from its prohibition the reading, selection, or entering of a telephone number or name for the purpose of making or receiving a telephone call. Any employer who has employees under 18 should be aware that those individuals are completely prohibited from using a cell phone while driving. While the law does not impose specific requirements on California employers, employers should consider having a policy that notifies employees of these laws and discourages employees from using their cell phone while driving in any manner that would violate either of these laws. Such a policy could require employees to use a hands-free device if making a telephone call while driving on company business, or it could prohibit the use of a cell phone while driving on company business. Prior to implementing such a policy, an employer should consider the practical ramifications to its employees of compliance with the policy. For example, if a manager typically wants a prompt response from an employee who often drives on company business, the company may not want to completely prohibit the use of cell phones while the employee is driving. Workplace Injury Reporting Revised California Labor Code section 6409.1 formerly required an employer to annually file and partially post a report of every occupational injury or illness with respect to each employee that lost time beyond that date of the injury or illness, or required medical treatment beyond first aid. Under the new law, the employer is to file the report with the insurer on an electronic form prescribed by the state. Since the new form has not yet been created, the law states that the changes shall become effective upon the effective date of implementing regulations adopted by the Administrative Director of the Division of Workers’ Compensation. Insured employers will undoubtedly obtain the new forms from their insurance carrier. Employers who do not have workers’ compensation through an insurer should monitor the law to ensure that the required procedure is followed, once the new form has been created by the state. ******* If you would like to discuss how the Alert might affect you or your business, please contact Teresa R. Tracy at (310) 821-9000, x717 or the attorney with whom you regularly work. This Alert is published as a service to our clients and friends. It is intended for informational purposes only and is not intended to constitute advertising, solicitation or legal advice. ©2009 Berger Kahn, A Law Corporation. All Rights Reserved. Back |
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