Also, if you would like to receive these alerts via email, please email alemos@wprlaw.com and we would be happy to include you on our mailing list.  Thanks!

The FEHC has scheduled public hearings on the proposed regulations for April 17, 2012 at 10:00 a.m. in Los Angeles, and April 19, 2012 at 10:00 a.m. in San Francisco.  Details concerning the hearings can be seen here: Notice Proposed Rule Making.  Employers wishing to submit written comments to the FEHC concerning the proposed regulations must do so by April 19, 2012.  We will keep you apprised regarding the FEHC’s final action concerning the proposed regulations.

Many of the proposed regulations are designed to incorporate provisions from the Federal Americans with Disabilities Act Amendments (“ADAAA”) and the Equal Employment Opportunity Commission’s ADAAA regulations, which, in some instances, offer broader protections to disabled employees and applicants than the existing California Fair Employment and Housing Act (“FEHA”).   [For additional information concerning the differences between the ADAAA and the FEHA please see our March 2, 2012 Breakfast Briefing Presentation Slides].  The FEHC’s proposed regulations also incorporate proposed requirements under the California Genetic Information Non-Discrimination Act.

The FEHC will hold public hearings on the proposed regulations on April 17, 2012 at 1:00 p.m. in Los Angeles and on April 19, 2012 at 1:00 p.m. in San Francisco.  Details concerning the public hearing are found here:  Notice Proposed Rule Making Disability.  If you wish to provide written comments to the FEHC concerning the proposed regulations, the deadline for submission is April 19, 2012.  We will keep you apprised regarding the FEHC’s final action concerning the proposed regulations.

The federal Genetic Information Non-Discrimination Act (GINA) and California law prohibit employers from obtaining certain genetic information concerning job applicants and employees.  Although many medical providers are careful not to provide this information, it is nevertheless possible that a medical provider may not be aware of the law and may provide to the employer information that the employer is otherwise prohibited from obtaining.  The Equal Employment Opportunity Commission has advised that an employer will not be held responsible for an inadvertent disclosure violation if the employer has included in its communications with the medical provider certain “safe harbor” language advising the medical provider not to provide information that is prohibited under GINA.  The “safe harbor” language is as follows (which we have modified slightly to incorporate California law):

The Genetic Information Nondiscrimination Act of 2008 (GINA) and California law prohibit employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by these laws.  To comply with the law, we are asking that you not provide any genetic information when responding to this request for medical information.  “Genetic information” as defined by GINA and/or California law, includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact than an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.

It is generally advisable to include this safe harbor language in any written communications or documentation  in which the employer is seeking from the medical provider any medical information concerning an applicant or employee, including but not limited to, documentation relating to pre-employment medical exams, requests for medical certifications or releases to return to work, communications with medical providers in connection with  requests for reasonable accommodation, family medical leave medical certification forms, pregnancy disability medical certification forms, and communications with and/or forms provided to medical providers relating to workers’ compensation injuries or disability retirement matters.

This morning, WPR hosted its annual Breakfast Briefing at Scott’s Seafood Restaurant in Jack London Square, Oakland. From 8:30am-10:30am, clients filed into the banquet room to enjoy breakfast while learning about the newest ADA Regulations, 2012 Litigation updates, and PERB Factfinding presented by Joe Wiley, Monna Radulovich, Ian Fellerman, and Masa Shiohira. Overall, it couldn’t have run any smoother; clients and guests seemed very satisfied and learned a lot, while the lawyers at WPR enjoyed sharing about these subjects and catching up with clients.

In case you missed WPR’s annual Breakfast Briefing or just want another look at the powerpoint, we have attached it in .pdf form for your convenience: March 2, 2012 Breakfast Briefing Presentation

Thank you to all of those who attended our Briefing, it has been such a pleasure to serve you and all of us at WPR hope you enjoyed it.

As always, this year’s Breakfast Briefing is meant to be full of practical information for our clients and others to listen and learn while enjoying a lovely continental breakfast at Scott’s Restaurant in Jack London Square in Oakland.

If you have any questions or concerns regarding the Breakfast Briefing, feel free to e-mail alemos@wprlaw.com or mvinluan@wprlaw.com. 

The employer is also required to give employees requesting PDL leave an individual copy of the appropriate notice as soon as practicable after the employee tells the employer of her pregnancy or when the employee inquires about pregnancy leave. 

Copies of the required notices are found at www.dfeh.ca.gov/Publications_Publications.htm.

Under previous law, an employer who had no permanent and fixed place of business in California and who entered into a contract of employment involving commissions as a method of payment for an employee’s services was required to enter into a written contract with the employee that set forth the method by which the commissions would be computed and paid. A Federal District Court in California held the law to be invalid.

A.B. 1396 is the Legislature’s efforts to restore protections for commissioned employees by now requiring the law to apply to all employers, not just those who do not have a fixed place of business in California. The new law, which amends Labor Code section 2751, will become effective January 1, 2013. It requires employers to enter into a written employment contract with an employee who performs services in California and whose contemplated method of compensation involves commissions. The written contract must specify the method by which commissions shall be computed and paid.

The employer must give a signed copy of the contract to every employee who is a party to the contract, and the employer must obtain a signed receipt from the employee verifying his/her receipt of the signed contract.

If the contract expires and the parties continue to work under the terms of the expired contract, the contract terms are presumed to remain in full force and effect until a subsequent written agreement is entered or employment is terminated by either the employer or employee.

WHAT TO DO NOW:

This law does not take effect until January 1, 2013. Employers should begin implementation of the new law as soon as practicable. By entering into a written agreement that specifies the terms of the commission and how it will be computed and paid, your company may avoid the disputes that typically arise relating to commissioned employees.

This new law prohibits willful misclassification of individuals as independent contractors. It adds section 226.8 to the California Labor Code which specifies that it is unlawful for any person or employer to:

(1) Willfully misclassify an individual as an independent contractor (meaning the person or employer voluntarily and knowingly misclassifies an individual as an independent contractor); or

(2) Charge an individual, who has been willfully misclassified as an independent contractor, a fee or make deductions from his/her compensation for any purpose, including for goods, materials, space rental, services, government licenses, repairs, equipment maintenance, or fines arising from the individual’s employment, where any of such charges/deductions would be considered unlawful if the person had been appropriately classified as an employee.

The consequences of a violation are serious and include:

          (1) If the Labor Workforce and Development Agency (“LWDA”) or a Court determines that a person or employer has violated the law, the person or employer shall be subject to a civil penalty that ranges from $5,000 to $15,000 for each violation, in addition to any other penalties or fines permitted by law;

          (2) If the LWDA or a Court determines that the person or employer has engaged in or is engaging in a pattern or practice of these violations, the penalty shall be $10,000 to $25,000 for each violation, in addition to any other penalties and fines permitted by law;

          (3) If the person or employer is a licensed contractor under the Contractors’ State License Law, the order of the LWDA or Court shall be transmitted to the Contractors’ State License Board, which must initiate disciplinary action against the license holder within 30 days. The disciplinary action can include disbarment;

          (4) The LWDA or Court shall order the person or employer to display prominently for one year on its Web site, in an area accessible to all employees and the general public, a specified notice that includes a statement that: (a) the person or employer has committed a serious violation of the law by willfully misclassifying employees; (b) the person or employer has changed its business practices to avoid further violations; and (c) any employee who believes he or she has been misclassified may contact the LWDA. If the person or employer does not have a Web site, the notice must be physically posted in a prominent location available to the general public at each location where a violation has occurred; and

          (5) The Labor Commissioner also has authority to issue a citation to assess damages and the fines specified above.

The new law also adds Labor Code section 2753 to specify that a person who, for money or other valuable consideration, knowingly advises an employer to treat an individual as an independent contractor to avoid employee status will also be in violation of the law, and subject to fines, if the person is found not to be an independent contractor. This new law is designed to deter accountants and other consultants from knowingly advising an employer to misclassify a person as an independent contractor. It does not apply to a person (such as a supervisor or manager) who provides advice to his/her employer, or an attorney authorized to practice law who is providing legal advice to the employee

WHAT TO DO NOW:

Proceed with caution when determining whether a person is an independent contractorrather than an employee. The tests that determine whether or not someone is an independent contractor are quite stringent. Misclassification can lead to significant liabilities for the employer, including tax liabilities and penalties, as well as these new fines.