Though the legislature in Sacramento proposed plenty of labor and employment legislation in 2009, relatively few bills were signed into law. Below is a summary of the new laws of major significance.
|
|
|
|
|
 |
CALIFORNIA
LABOR & EMPLOYMENT LAW LEGISLATION
NEW LAWS ENACTED IN 2009
By Christopher W. Olmsted
Though the legislature in Sacramento proposed plenty of labor and employment legislation in 2009, relatively few bills were signed into law. Below is a summary of the new laws of major significance.
Alternative Workweek Schedules
AB 5
California law regarding alternative workweek schedules have been eased somewhat as a result of AB 5.
Alternative workweek schedules allow non-exempt employees in a “work unit” to work in excess of 8 hours per day without incurring overtime. (Unlike federal law, California law includes a daily overtime requirement.) Generally, an employer may propose AWS work schedules of up to ten hours per day (12 for healthcare workers). Hours in excess of 10 per day, or 40 per week are overtime. Typically employers propose schedules consisting of four ten hour days or a “9/80” schedule. Special procedures describe advance disclosure and a secret ballot election prior to implementation of the AWS.
The AWS can apply to a “work unit” within a company, rather than to all employees. Previously, the Labor Code did not define “work unit,” although state regulations included a definition. The new law codifies the definition by amending California Labor Code § 511 to define a work unit as “a division, a department, a job classification, a shift, a separate physical location, or a recognized subdivision thereof.” The amendment also clarifies that even a single employee may qualify as a work unit as long as his job function meets the definition.
In setting up an AWS, an employer may propose a single work schedule, or it may propose a menu of work schedule options for workers to select. Can the “menu” include a traditional 5 day week for those employees who do not want to work longer days? The amended law clarifies that the menu options may indeed include a regular schedule of five eight-hour days in a workweek. Consequently, employees who do not wish to work an AWS schedule may still vote in favor of the AWS by choosing to work the regular 8 hour day. This change greatly increases the odds of achieving the 2/3 employee supporting vote need to implement an AWS.
Additionally, the new law specifies how often employees may move from one schedule option to another on the menu. For example, if an employee opts to work four 10 hour days, how frequently can he opt to go back to regular 8 hour days? As amended, Labor Code § 511 allows employees to move from one schedule option to another on a weekly basis.
Civil Air Patrol Leave
AB 485
California has added a new leave right for members of the California Wing of the Civil Air Patrol.
The CAP is a civilian auxiliary of the U.S. Air Force. There are approximately 4,000 members in California.
Length of leave: 10 days per calendar year, with a three day limit per emergency.
Covered employers: 15 or more employees.
Covered employees: Employees with at least 90 days of employment and who are volunteer members of the California Wing of the Civil Air Patrol.
Covered events: The employee is covered only when he or she is called to respond to “an emergency operational mission.” Presumably this includes search and rescue missions and disaster relief efforts. It would apparently not include non-emergency duties.
Notice required: The law requires the employee to provide “as much notice as possible of the intended dates upon which the leave would begin and end.”
Certification: The employer may require the employee to provide documentation of the need for the leave.
Return to duties: The employer must restore the employee to the position he or she held when the leave began or to a position with equivalent seniority status, employee benefits, pay, and other terms and conditions of employment.
Read the text of the new law.
Workers’
Compensation
Pre-designation of Personal
Physician
SB 186
Workers’ compensation reform legislation enacted in 2004 afforded workers the ability to pre-designate their personal physician of choice as the first medical provider in case of a work-place injury. However, that ability was scheduled to end on December 31, 2009.
SB 186 deleted the sunset provision. The pre-designation right is now permanent.
Note that workers are still required to designate their personal physician in advance and in writing. The right applies only where the employer offers non-occupational group health coverage. The worker must designate his or her regular physician or medical group. If a worker does not pre-designate a personal physician, in the event of an occupational injury, the employer may direct the worker to its designated medical provider network (MPN).
Workers’
Compensation
Uninsured Employer Penalty Increased 50%
SB 313
The penalty for failing to procure workers’ compensation insurance has increased at least 50%. California private sector employers must secure the payment of workers’ compensation. Unless a company qualifies as self-insured, it must purchase insurance.
The Division of Labor Standards Enforcement enforces this law, and if it finds an employer to be uninsured, it issues a stop order requiring the company to cease operating until insurance is procured. Additionally, the DLSE imposes a monetary penalty. Existing law, found in California Labor Code § 3722, provides that uninsured employers must pay a penalty in the amount of $1,000 per worker. SB 313 increases the penalty to $1,500 per uninsured worker.
There is an alternative method of calculating the penalty, and the new legislation changes this method as well. The state may alternatively impose a penalty in the amount of twice the amount the employer would have paid in workers’ compensation premiums during the period the employer was uninsured. If the employer is currently insured, then the penalty is calculated by counting the number of uninsured weeks during the past three years and multiplying by the employer’s current insurance premium on a pro-rated basis. If the employer is currently uninsured, then the penalty is determined by calculating the payroll during the periods of no insurance, and applying a premium rate set by the state.
Download entire December 2009 Legal Update in PDF format.
This article is intended as a brief overview of the law and are not intended to substitute as legal advice. Any questions or concerns regarding any statute or case law should be addressed to a licensed attorney. Copyright © 2009 by Barker Olmsted & Barnier, APLC. San Diego, California. All rights reserved.
|
Copyright © 2007 Barker Olmsted & Barnier.
All Rights Reserved. Powered by Infinitude.net Disclaimer.
Privacy Notice. 