HR Watchdog

Federal Equal Pay - Lilly Ledbetter Fair Pay Act signed

President Barack Obama signed the Lilly Ledbetter Fair Pay Act of 2009 this morning. As this case has been lingering, the effective date of the bill is May 28, 2007. So, any federal cases currently pending that were filed after May 28, 2007 will be subject to this new law. The bill has two components:

(1) Title I reverses the U.S. Supreme Court decision from 2007 that limited the statute of limitations for federal claims of discrimination and unequal pay to when the pay decision was made. Lilly Ledbetter, the employee in the case, claimed the statute of limitations should run starting with the issuance of each individual paycheck because each paycheck was a continuing violation of the discriminatory act of unequal pay. The Supreme Court disagreed with Ms. Ledbetter, but Congress and President Obama agree with her. This new law, which amends Title VII, ADEA, the Rehabilitation Act and the Civil Rights Act specifically states:

An unlawful practice occurs, with respect to discrimination in compensation, when a discriminatory-compensation decision or other practice is adopted, when a person becomes subject to a discriminatory-compensation decision or other practice, or when a person is affected by application of a discriminatory-compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice.

(2) Title 2 of the Act is the Paycheck Fairness Act. This section expands retaliation protections and increases penalties for violations of equal pay requirements. It also provides for increased training within government agencies and for girls and women relating to negotiation skills and additional education in this area.

As a California employer, how does this impact you? California law, including our equal pay statute and the Fair Employment Housing Act, provides these protections. However, our law is not as clear regarding when the statute of limitations begins to run for these types of cases. It is established in California that a "continuing violation" is a cause of action based upon a series of actions by the employer that discriminate against an employee or employees. The Lilly Ledbetter Act more clearly defines for purposes of equal pay what a continuing violation is. It is unclear whether California courts will adopt this bright line test.

It is also important to note that should a person file a federal case under these new requirements, he or she will only be eligible to recover damages going back two years (the statute of limitations) even if the claim extends beyond that time period. In California, the statute is also two years but can extend to three years if the violation is willful.

We will continue to cover this case and provide an additional summary in next week's HRCE. If you do not currently receive this free newsletter, Sign up now!

U.S. Supreme Court Speaks on Retaliation

The U.S. Supreme Court addressed the issue of retaliation protections in the workplace under federal law. The Court stated that the Title VII anti-retaliation provision’s protection extends to an employee who speaks out about discrimination, not on her own initiative but in answering questions during an employer’s internal investigation. Nothing in the statute requires "a freakish rule" protecting an employee who reports discrimination on her own initiative but not one who reports the same discrimination when questioned during an investigation of another employee’s claims. Crawford v. Metropolitan Gov’t of Nashville 555 U.S. ___ (2009)

This case will be covered in next week's HRCE. Keep in mind, these protections already exist under California law!

NEW!! UPDATE ON NEW I-9 FORM! April 3, not Feb 2

On Wednesday, January 21, President Barack Obama's Chief of Staff, Rahm Emanuel issued a memorandum to all federal agencies directing the agencies to put a freeze, and recommended a 60-day hold, on any federal regulations not yet published in the federal register. This means that any federal regulations recently issued for comment will be delayed, at a minimum, for 60 days.

For employers, the main regulations that may be impacted by this freeze are the regulations proposing to amend the I-9 form by February 2, 2009, although the DHS and USCIS had already issued the new form. The new form and the related regulations are part of the freeze. We reported earlier this week that, until further notice, the current I-9 form should be used and not the February 2, 2009 form.

However - effective January 29, 2009, the USCIS issued an announcement, late in the day, that the new I-9 form will be delayed until April 3, 2009. Until then, the current form with the 06/05/07 revision date should be used.

For employers concerned about the impact on the FMLA regulations effective last week, those regulations are final and have been published in the federal register, so they are currently in effect.

We are tracking these developments and, once any new information is available, we will update you via this blog or HRCalifornia Extra when final determinations relating to federal regulations are made.

CalOSHA Public Meeting Announcement for Feb. 5

Below is a notice of a public advisory committee meeting of the Cal OSHA Appeals Board. The appeals board will present to and discuss with stakeholders their proposed new expedited appeal process for serious citations where abatement is an issue.

Occupational Safety and Health Appeals Board
Advisory Committee Agenda
February 5, 2009
1:00-4:00 p.m.
Occupational Safety and Health Appeals Board Hearing Room
2520 Venture Oaks Way, Suite 300
Sacramento, CA

Call to Order
Welcome and Opening Remarks
Overview of Advisory Committee Role and Purpose
Discussion of Expedited Abatement Pilot Project
Board presentation and review of attached project overview
Solicitation of stakeholder and public comment
Stakeholder and Public Input Regarding Subjects for Future Advisory Committee Meetings
Adjournment

DISABILITY ACCOMMODATION NOTICE: Disability accommodation is available upon request. Any person with a disability requiring an accommodation, auxiliary aid or service, or a modification of policies or procedures to ensure effective communication and access to the public hearings/meetings of the Occupational Safety and Health Appeals Board should contact the Disability Accommodation Coordinator at (916) 274-5721 or the state-wide Disability Accommodation Coordinator at 1-866-326-1616 (toll free). The state-wide Coordinator can also be reached through the California Relay Service, by dialing 711 or 1-800-735-2929 (TTY) or 1-800-855-3000 (TTY-Spanish). Accommodations.

Accommodations can include modifications of policies or procedures or provision of auxiliary aids or services, such as an Assistive Listening System (ALS), a Computer-Aided Transcription System or Communication Access Realtime Translation (CART), a sign-language interpreter, documents in Braille, large print or on computer disk, and audio cassette recording. Accommodation requests should be made as soon as possible. Requests for an ALS or CART should be made no later than five (5) days before the meeting.

50 (or less) Employees?

There are a number of requirements for California employers with 50 or more employees. If you have laid off employees or simply dropped below that threshold, do you still need to comply? What if you have 20 employees in California and 40 elsewhere in the country or the world? Here are a few questions we have fielded on these issues.

For mandatory sexual harassment training, where do the 50 employees have to be located and which supervisors have to be trained.
If you have 50 employees anywhere on earth, or the universe for that matter, then the mandatory supervisor sexual harassment training requirement applies to your company, even if you only have one employee in California. However, only the supervisors in California must be trained. It is always advisable to train all employees, especially supervisors in harassment awareness and avoidance, as well as how to complain in they feel they have been subject to harassment.

What if I had 50 employees last year but now have less than 50, do I still have to give California supervisors 2 hours of interactive, sexual harassment training every 2 years?
The regulations specify that "having 50 or more employees” means employing or engaging fifty or more employees or contractors for each working day in any twenty consecutive weeks in the current calendar year or preceding calendar year. There is no requirement that the 50 employees or contractors work at the same location or all work or reside in California. So, if you had 50 or more employees last year, the requirement still applies to you this year, even if you have less than 50.

What about FMLA/CFRA - if my employee count has dropped below 50 this year, do I still have to comply?
These laws define a covered employer as an employer who has employed (had on the payroll) 50 or more employees for 20 or more workweeks in the current or preceding year. The workweeks do not have to be consecutive. So, if you had more than 50 employees (in the universe) last year but have dropped below 50 in 2009, you are still a covered employer. If you stay below 50 for 20 workweeks in 2009 and 2010, you will no longer be a covered employer.

Keep in mind with FMLA/CFRA the distinction between "covered employer" and "eligible employee." Eligible employees have worked for the employer for 12 total months (within the past 7 years for FMLA only leaves), for 1250 hours in the previous 12 months and work at a location with 50 or more employees within a 75 mile radius.

Thus, you could be a covered employer - which means you have to post the required posters for FMLA and CFRA and have a policy explaining employee rights - but not have any eligible employees.

We don't make up the law, we just report it.

New Year for SH Training!

Have you decided how you are tracking your mandatory supervisor sexual harassment training? There are two methods to track this training:

Individual Tracking: If you use this method, each supervisor must be trained no later than 2 years after his or her prior training date. For example, if Betty Supervisor was trained on February 15, 2007, her training must be completed by February 14, 2009.

Training Year Tracking: Using this method, your company designates a year as the training period. All supervisors must be trained within that year. For example, if Barney Supervisor was trained February 15, 2007 then he must be trained again no later than the end of 2009.

Make sure your supervisors and managers are trained within the compliance deadlines! CalBizCentral has an easy, affordable, online solution for you.