VOLUME 4 NO. 3 JULY 2008
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Legal Roundup Genetic Anti-Bias Law Signed One Year DFEH Statute of Limitations Sexual Harassment Training Lunch & Learn
Hands-Free Cell Phone Use
On July 1, 2008, California, like several other states, will begin prohibiting the use of hand held mobile phones while driving.
Vehicle Code § 23123, known as the California Wireless Telephone Automobile Safety Act, will bar the use of cell phones by drivers in vehicles that are moving unless the driver is using a hands-free device. Under Vehicle Code § 23124(b), even if the vehicle is equipped with a hands free device, drivers under 18 years of age may not use a cellular phone while
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Editor: Paul Lafranchise Email: plafranc@kleinlaw.com Phone: 661.395.1000
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LEGAL ROUNDUP
Mandatory Paid Sick Leave
Although San Francisco, California is the only jurisdiction in the country with a mandatory paid sick leave requirement, several states, cities, and the U.S. Congress are considering similar proposals that would require businesses to provide employees with paid sick leave.
Retaliation Against Supervisors Thrown Out
On April 7, 2008, the California Supreme Court filed its decision in Lonicki v. Sutter Health Central. Lonicki claimed major depression and work-related stress, and stopped coming to work; she requested medical leave. Believing Lonicki did not have a serious health condition and was capable of performing her duties, her employer ordered her to return to work and fired her when she did not. One of the issues the court decided was whether the fact that a full time employee, during the period in which medical leave was sought, who continued to perform a similar job for another employer on a part-time basis, would conclusively establish that the employee had the ability to do the job for the original employer. The court concluded that the part-time job was evidence of the ability to do similar work for the original employer from whom the employee sought medical leave, but it was not conclusive. Because the parties presented contrary evidence on whether the employee had a serious health condition that made her unable to do her full-time job, there was a disputed issue of fact that had to be resolved at trial.
Genetic Anti-Bias Law Signed
On May 21, 2008, President George Bush signed a bill into law that bars discrimination by insurance companies and employers based on a person’s genetic information. An avalanche of lawsuits can be expected if the law is interpreted broadly. The new law, known as the Genetic Information Nondiscrimination Act (GINA), protects persons against discrimination because of their genetic information in the terms and conditions of their employment, and with respect to obtaining and maintaining health insurance. Consumers and employees are expected to take advantage of genetic testing as an element of their health care. The new law specifically amends various sections of the Internal Revenue Code of 1986, the Social Security Act, the Employee Retirement Income Security Act of 1974, and the Public Health Safety Act. California, and more than 30 states, already bans discrimination because of genetic information, as specified in the California Fair Employment & Housing Act.
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Hands-Free
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One-Year DFEH Statute of Limitations
On January 18, 2008, the California Court of Appeal filed its decision in Hammond v. County of Los Angeles, et al. Hammond, a nursing instructor employed by the County Sheriff’s Department, sued her employer alleging violations of the Fair Employment & Housing Act (FEHA). The defendants contented the plaintiff’s FEHA allegations that occurred prior to July 1, 2003, more than one-year before plaintiff filed her administrative complaint with the Department of Fair Employment and Housing (DFEH) on July 1, 2004, were barred by the one-year limitation in FEHA § 12960(d). Plaintiff, on the other hand, asserted the “continuing violation” doctrine, allowing her to rely on discriminatory conduct that occurred before July 1, 2003. The court did not determine whether the continuing violation doctrine applied because it found the plaintiff had submitted evidence that was within the oneyear limitations period. Actionable conduct had occurred during that time, such as a reduction in plaintiff’s classroom teaching assignments.
operating the vehicle. After he signed the bill, California Governor Arnold Schwarzenegger pointed out that cell phones are the number one cause of distracted-driver accidents. The law does not apply to a person using a wireless phone for emergency reasons, nor does it apply to an emergency services professional using a wireless phone while operating an authorized emergency vehicle in the course and scope of his or her duties. California employers should determine whether they should provide employees with a handsfree headset if the employer expects employees to use a cell phone while driving on company business. Employers should also consider creating and distributing a cell phone policy.
KDG Provides Employment Counseling, Labor Counseling and Litigation for Management KDG handles a full range of employment and labor matters in the private and public sectors on behalf of management.
We serve as counselors to many Human Resource departments, offering services such as the development of employee handbooks, policies and procedures manuals and other materials in support of our clients’ management needs. Do not hesitate to contact any one of our team members if you have employment questions or concerns.
Jay Rosenlieb Managing Partner jlr@kleinlaw.com 661.328.5225 David D. Blaine Partner dblaine@kleinlaw.com 661.328.5276
Robin Paggi, MA, SPHR-CA Certified Human Resource Professional rpaggi@kdghrsolutions.com 661.634.1200
Katy C. Raytis Associate kraytis@kleinlaw.com 661.328.5288
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Sexual Harassment Training: It’s the Law
State-Mandated AB1825 May Affect You State law requires all employers of 50 or more employees to provide all supervisors with two hours of interactive training on the causes and prevention of sexual harassment. This includes temporary workers, and independent contractors working on your company’s premises. And new supervisors must be trained within six months of hire.
Don’t jeopardize your assets...Join KDG Human Resource Solutions for training to ensure your business is in compliance with AB1825. Wed., Sept. 17, 2008, 9:00 a.m. –11:00 a.m. Klein, DeNatale, Goldner 3rd Floor Training Room 4500 California Avenue $50.00 registration fee per attendee For registration, contact Brandi Gray at bgray@kleinlaw. com or call 661-634-1200 for more information.
KDG Human Resource Solutions presents
Lunch & Learn
This monthly lunch program is designed to provide continuing education on timely, HR management issues that affect your business. Join us at the next sessions where we’ll present:
“Deciphering Leaves of Absence”
Wednesday, July 23, 2008 12:00 p.m. – 1:00 p.m.
“HIPAA, COBRA & Other Scary Acronyms”
Wednesday, August 20, 2008 12:00 p.m. – 1:00 p.m.
“Avoiding, Answering, and Resolving DFEH & EEOC Discrimination Claims”
Wednesday, September 17, 2008 12:00 p.m. – 1:00 p.m.
“Recruiting, Hiring & Relevant Paperwork”
Wednesday, October 15, 2008 12:00 p.m. – 1:00 p.m.
All meetings are in the Klein, DeNatale, Goldner Training Room, 4550 California Avenue, Third Floor, Bakersfield.
The cost is $10 per person, or complimentary to KDG Human Resource Solutions clients (up to four attendees/contract). To make your reservation, contact Brandi Gray with at 661-634-1200 or bgray@kleinlaw.com.
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