HR Watchdog

New Information for Federally Funded Construction Work

The Wage Hour Division (WHD) of the federal Department of Labor has released guidance concerning implementation of Section 1606 of the American Recovery and Reinvestment Act of 2009 (ARRA), which provides for the application of Davis-Bacon labor standards to certain federal and federally-assisted construction work funded in whole or in part under provisions of ARRA. In addition, WHD has launched a new Web page with ARRA-related compliance information.

Read California Court Opinions As Soon As They Are Issued

If you know how to have a really good time - like me - you can read California court opinions as soon as they are issued. For example, if you want to read the Prop 8 decision from the California Supreme Court, you can visit the court's Web site and click on "view" next to the drop down menu where you pick how recent you want want to see opinions (for example, last 100 hours means opinions issued from the moment you are on the Web site and the previous 100 hours). For the Prop 8 decision, click next to Strauss v. Horton. You can even receive alerts if you are tracking cases through the court system. And people say lawyers don't know how to have a good time. Besides, these cases can come in handy if you have trouble sleeping! Enjoy...

Prop 8 Upheld, Same Sex Marriages Intact - Impact on Employers?

The California Supreme Court upheld the ban on same sex marriage adopted by voters in November through Proposition 8. The Court did state that the same sex marriages that occurred between August and November 2008 remain legal marriages in the eyes of the law in California.

As employers, how does this impact you? Review your policies to ensure you are not discriminatory and that your policies recognize both marriage and registered domestic partnerships. More importantly, in the meantime, monitor "water cooler" conversations about this issue as it is an issue that ignites strong discussion on both sides. Remind employees of your anti-discrimination policies and make sure your supervisors and managers are paying attention to these conversations, e-mails, etc.

HR Watchdog Blog for Employers, Prop 8 Watch Today

As we wait for the California Supreme Court to issue it opinion regarding Prop 8 - which should happen at 10:00 this morning - I wanted to give an update on how the blog is going. We have received a number of very interesting posts relating to the blog topics. We encourage all employers and HR staff to use our blog as way to discuss these issues among your peers and colleagues so you may use this information to improve how you run your business. When you have specific questions, our preferred and executive members can contact the Labor Law Helpline. If employees have questions, those should be directed to the HR Department or as specified in company policy.

Thanks for tracking the blog - keep an eye out a little after 10:00 for a report on how the court ruled on Prop 8. There are two issues: (1) Whether the constitution, based on voter majority, can be amended to define marriage as between a man and woman only; and (2) Whether the same sex marriages that occurred between August 2008 and November 2008 are still valid.

Hulteen v. AT&T - No Retroactive Application of Discrimination Laws

The U.S. Supreme Court issued its long-awaited decision in the Hulteen v. AT&T case, wherein former female employees were claiming discrimination under the Pregnancy Disability Act because they did not get pension credit while on pregnancy leave - but their leave was before the PDA went into effect. The full case is available on the U.S. Supreme Court Web site. The case will also be covered in Thursday's HRCalifornia Extra, our free newsletter. If you do not already receive HRCE, sign up here.

Cal-COBRA Employers - notice requirements and subsidy!

California law is now updated relating to the Cal-COBRA subsidy for employers with 2-19 employees. Specifically:

(1) An insurer may request verification of the involuntary termination of a covered employee’s employment from the covered employee’s former employer or the qualified beneficiary seeking premium assistance under the American Recovery and Reinvestment Act subsidy.

(2) An insurer that requests verification pursuant to paragraph (1) directly from a covered employee’s former employer shall do so by providing a written notice to the employer. This written notice shall be sent by mail or facsimile to the covered employee’s former employer within seven business days from the date the insurer receives the qualified beneficiary’s election notice.

(3) Within 10 calendar days of receipt of written notice required by this paragraph, the former employer shall furnish to the insurer written verification as to whether the covered employee’s
employment was involuntarily terminated.

(4) A qualified beneficiary requesting premium assistance under the subsidy program may furnish to the insurer a written document or other information from the covered employee’s former employer indicating that the covered employee’s employment was involuntarily terminated. This document or information shall be deemed sufficient by the insurer to establish that the covered employee’s employment was involuntarily terminated, unless the insurer makes a reasonable and timely determination that the documents or information provided by the qualified beneficiary are legally insufficient to establish involuntary termination of employment.

(5) If an insurer requests verification and cannot verify involuntary termination of employment within 14 business days from the date the employer receives the verification request or from date the insurer receives documentation or other information from the qualified beneficiary, the insurer shall either
provide continuation coverage with the federal premium assistance to the qualified beneficiary or send the qualified beneficiary a denial letter which shall include notice of his or her right to appeal that determination pursuant to the ARRA.

(6) No person shall intentionally delay verification of involuntary termination of employment under this subdivision.

Be sure to get in touch with your insurance carrier if you are a CalCOBRA employer. Understand what the agreement between you and your carrier requires regarding who must send required notices, handle payments, etc.

Cal-COBRA Subsidy Adopted by Cal Legislature - form change!

On May 12, the Governor signed AB 23 which authorizes Cal-COBRA to adopt the subsidy program enacted by Congress earlier this year. The subsidy program, part of the federal ARRA, gives employees involuntarily terminated between September 1, 2008 and December 31, 2009 up to nine months of subsidized Cal-COBRA coverage. The former employee pays 35% of the premium and the employer/health insurer (typically the insurer, but it will depend based upon the agreement between the employer and the health insurer) pays 65% of the premium, getting reimbursement through payroll taxes.

The federal Department of Labor issued sample model notices that insurance carriers must use to provide former employees of their rights under the subsidy. For Cal-COBRA,The COBRA Subsidy for Cal-COBRA - Alternative Notice should be used. However, California law requires some additional language to be included in this notice:

IF YOU ARE HAVING ANY DIFFICULTIES READING OR UNDERSTANDING THIS NOTICE, PLEASE CONTACT [name of health plan] at [insert appropriate telephone number].

We have updated the form on our Web site for our members to use - the changes will be live in the COBRA Subsidy for Cal-COBRA - Alternative Notice form on May 15.

Termination Landmines

The right to terminate belongs to at-will employers, but there are some things to consider before you bring down the ax.

Discrimination claims. Workers over age 40 are protected from discrimination. Terminating or reducing the salary of employees with higher salaries as a cost-cutting measure increases your liability for age discrimination if there is a disproportionate impact on employees over 40.

CalChamber members should keep an eye out for our multi-part series on cost cutting measures that could hurt you - by costing more in fines or lawsuits than you saved. This topic and others will be discussed in depth in this series.

Homeland Security Announces Shift in Worksite Immigration Enforcement to Target Employers

On April 30, 2009, the Department of Homeland Security (DHS) announced a major shift in the worksite enforcement program conducted by Immigration and Customs Enforcement (ICE): “Effective immediately, ICE will focus its resources in the worksite enforcement program on the criminal prosecution of employers who knowingly hire illegal workers in order to target the root cause of illegal immigration.” Until recently, the program focused on unauthorized workers. The Department issued updated worksite enforcement guidance to ICE agents to implement this new strategy.
DHS’s announcement explained:
•    ICE officers will obtain indictments, criminal arrest or search warrants, or a commitment from a U.S. Attorney’s Office (USAO) to prosecute the targeted employer before arresting employees for civil immigration violations at a worksite.
•    ICE will look for evidence of the mistreatment of workers, along with evidence of trafficking, smuggling, harboring, visa fraud, identification document fraud, money laundering, and other such criminal conduct.
Enforcement of immigration law has already been a high priority for the federal government in recent years. In 2008, a majority of all federal prosecutions (51 percent) were immigration cases. However, only 135 of the 6,000 arrests relating to worksite enforcement were of employers. The shift in strategy should result in a dramatic increase of criminal arrests and prosecutions of business owners, managers and supervisors.

"Time off to Vote" Notices

A statewide special election is scheduled for Tuesday, May 19, 2009 - be sure your Time Off to Vote Poster is posted in your workplace or in a location where employees will see it as they enter or exit their workplace at least 10 days before the election. If you have CalChamber's all-in-one Employment Notices Poster and have posted it in  a conspicuous location where employees will see it, you do not have to do anything. If you do not, be sure to post this required notice or purchase CalChamber's poster, which has all federal and California notices required for California employers.

State law (California Elections Code Section 14001) requires employers to post a notice to employees advising them of provisions for taking paid leave for the purpose of voting in statewide elections. "Special" statewide elections may also be called but are not regularly scheduled. In general, a statewide election is defined as one in which all voters in the state have an opportunity to vote on at least one common race or issue.

Employees are eligible for paid time off for the purpose of voting only if they do not have sufficient time outside of working hours to vote. The intent of the law is to provide an opportunity to vote to workers who would not be able to do so because of their jobs.