New Employment Laws Bring on Same Old Headaches

New Employment Laws Bring on Same Old Headaches



Changes Range From ‘Whistleblowers’ to Gender Discrimination

BY ARLENE PRATER

Despite a new governor with a new agenda, California employees are facing the same old headaches when it comes to new employment laws. The new year brought a host of new statutes that California employers must implement. While observers have call some of the laws “job killers,” that may be an overstatement.






However, the new laws do require California employers to step up to the plate and provide new benefits, rewrite policies, increase their training, and perform many other tasks that cost businesses time and money.






- New Laws






Taking Effect






While employers must be accountable for all of the new laws, some pose greater challenges than others. The following new laws, which were effective Jan. 1, may prove to be particularly problematic for California businesses.






o AB 76 Harassment of Employees by Customers and Third Parties.






Language in the Fair Employment and Housing Act is clarified by this bill covering an employer’s liability for harassment of employees by customers, clients, and other third parties. The law’s policies now clearly state that if an employee knew, or should have known, of sexual harassment by a third party of an employee and failed to take immediate and appropriate corrective action to stop the harassment, the employer will be liable.






The key words are “knew or should have known.” Employers are liable even if they didn’t know, but should have, and can be severely penalized for not knowing and/or failing to take action.






o AB 196 Gender Discrimination. This progressive new law protects transgender employees by adopting Penal Code hate crime definitions into employment discrimination laws. AB 196 also clarifies California laws that discrimination in employment based on “sex” includes discrimination based on “gender” and now includes a prohibition against discrimination based on perceptions of an individual’s identity, appearance, or behavior, regardless of whether these characteristics are different from those traditionally associated with the individual’s sex at birth.






Employers can require employees to adhere to reasonable workplace appearance grooming and dress standards consistent with state or federal law, provided that employees are allowed to appear or dress consistently with their gender identity.






o SB 2 Mandatory Health Care Coverage/Fee.






The health insurance Act of 2003, or Senate Bill 2, is a “pay or play” law that requires California employers to pay a fee to the state to provide health insurance or provide coverage directly to employees, in which case the fee is waived.






The law, which goes into effect in 2006, has different requirements for businesses, based upon the number of employees. For employers with 200 or more employees, employers must pay at least 80 percent of the health care coverage costs for employees and dependents for employees who have worked at least 100 hours for three consecutive months. Businesses with 20-199 employees must pay 80 percent of the employee’s costs only and employers with less than 20 employees are exempt. Low wage employees (earning $18,000 a year or less) will only pay five percent of their wages into the program.






Employers don’t need to start getting ready for SB 2 yet. In late January, an appellate court ruled that Californians will be given the right to vote on the new health care law, which will most probably appear on the November ballot.






Business interests had gathered more than 620,000 signatures for a 2004 ballot measure to overturn SB 2.






A Sacramento County Superior Court judge in December ruled that the petitions used were invalid but to the 1st District Court of Appeals ruled that the petitions were valid and that a referendum to overturn SB 2 may appear on an upcoming ballot. Employees should watch the developments regarding SB 2 closely and be prepared to abide by the law if/when it goes into effect.






o SB 77 Whistleblowers. This new law expands whistleblower protection for employees who report questionable activities in the workplace. Employers may not retaliate against an employee for refusing to participate in an illegal activity in their current employment or in any former employment. The burden of proof on an employer to prove that an employee was not retaliated against has been increased to “clear and convincing evidence” a higher standard than under previous laws. Employers who do retaliate are liable for up to $10,000 in fines for each violation.






Employers may now need to get a bigger bulletin board. Businesses are required to display a notice of an employee’s rights and responsibilities under the new statues, including the number of the Attorney General’s confidential whistleblower hotline.






As with any new laws, employers must quickly learn the specifics of these laws to ensure that they are being properly implemented. Training management as to how they must act and react under these changes, as well as training employees as to their rights and responsibilities, is critical. Policies must have been rewritten to reflect the changes as of Jan. 1, and employees must be advised of these changes.






Remember, these are just a few of the many new laws facing employers. Information about the new laws is available by visiting the Internet, attending seminars and workshops put on by various human resources organizations and/or by contacting employment law counsel.






Prater is a partner with the San Diego office of Best Best