Employment Update
January 2005

IMPORTANT UPDATES FOR EMPLOYERS


MAKE SURE YOUR POLICIES ARE UP TO SNUFF -- BEFORE SOME LAWYER DOES IT FOR YOU!


COBRA NOTICE RULES REVISED

As of November 26, 2004, new final regulations went into effect regarding COBRA notifications. COBRA requires businesses with 20 or more employees to allow terminated employees to continue participating in their insurance plan. The new regulations apply to notice obligations that arise on or after "the first day of the first plan year" on or after November 26, 2004. For example, a plan that uses the calendar year of January 1 - December 31 will be subject to the new rules on January 1, 2005.

The new notice requirements cover general notices, employer notices of qualifying events, election notices, notice of unavailability, and notice of early termination of continuation coverage. Each required notice must be written so that it can be clearly understood by the average plan participant. Employers should carefully review their COBRA notices to insure that the new requirements are satisfied.

Single Notice Rule: If the covered employee's spouse resides at the same address as the covered employee (on the basis of the most recent information available), the plan administrator may send a single notice addressed to both the covered employee and the covered employee's spouse by certified mail. If an employee is single, the general notice can be hand-delivered to a covered employee at the workplace. A separate notice to dependent children who live at the same residence as the covered employee or a covered employee's spouse to whom notice is provided is not required.

NEW SEXUAL HARASSMENT TRAINING REQUIREMENT

Beginning this year, employers with more than 50 employees are required to provide sexual harassment training to supervisors every two years. A person or entity that receives services from 50 or more persons through a contract arrangement, such as temporary workers also counts as an "employer" under the new law. AB 1825 is intended to decrease the number of sexual harassment claims against employers through supervisor training. Implementing an effective sexual harassment training program will also provide employers with a stronger defense to sexual harassment claims.

By January 1, 2006, affected employers must provide at least two (2) hours of training and education to all supervisory employees, who are employed as of July 1, 2005. Each new supervisor hired or promoted after July 1, 2005 must be trained within the first six months on the job. After January 1, 2006 each employer must provide sexual harassment training and education to supervisory employees once every two years. Employers who have provided compliant sexual harassment training and education to such employees after January 1, 2003 need not provide such training again by January 1, 2006, but must comply by January 1, 2008.

Although the new law does not define "supervisor," the Fair Employment and Housing Act describes a supervisor as an employee who uses independent judgment and has the discretion to hire, fire, promote or discipline other employees.

Employers must provide a minimum of "two hours of classroom or other effective interactive training" including:

  1. Information about federal and state laws concerning the prohibitions against sexual harassment;
  2. Practical guidance regarding the prevention and correction of sexual harassment;
  3. The remedies available to victims of sexual harassment in employment; and
  4. Practical examples to assist supervisors in learning about preventing harassment, discrimination, and retaliation.

The training must be presented by trainers or educators with knowledge and expertise in the prevention of harassment, discrimination and retaliation. The training should include an interactive component such as the opportunity for questions and answers and role-playing. Simply reading an employee handbook or watching a video is probably not sufficient. Employers should maintain a record of when the training was done, the training curriculum, and who attended the training for at least six years.

If an employer fails to comply with this training requirement, the Department of Fair Employment and Housing can order it to comply. Most important, a plaintiff alleging sexual harassment can offer evidence of a failure to provide training in support of his or her claim.

The Law Offices of Peter A. Singler provides sexual harassment training seminars customized to your business needs. Please call Sandra Wickland or Bruce Napell at (707) 823-8719 for additional information.

PRIVATE ATTORNEYS GENERAL ACT OF 2004 AMENDED TO REQUIRE NOTICE TO EMPLOYER

Enacted in 2003 by Governor Davis, the Private Attorneys General Act of 2004 (the Act), also known as the "Sue Your Boss Law" permitted employees to sue their employers for Labor Code violations and to recover penalties and attorney fees for Labor Code violations. SB 1809 amended the act by requiring that, before filing a lawsuit, a current or former employee must provide written notice by certified mail to the Labor and Workforce Development Agency ("Agency") and the employer of the alleged violation(s). SB 1809 took effect immediately and all of its changes were made retroactive to January 1, 2004.

Under the amended Act, an employer can avoid the lawsuit if it "cures" the alleged violation within a specified time and notifies the employee and the Agency. The employee may then challenge the employer's notice of cure. The Agency may elect to investigate the alleged violation and must notify the employee of its intent to investigate. If the Agency investigates and issues a citation within 125 days after commencing its investigation, then the employee may not sue for the violation.

SB1809 also repealed the little known Labor Code requirement that employers file copies of applications for employment with the DLSE, and provides that employees may not file a complaint for certain minor Labor Code violations, such as certain posting and notice requirements.

EXPANSION OF DOMESTIC PARTNER RIGHTS

The California Domestic Rights and Responsibilities Act of 2003 (AB 205) is effective January 1, 2005 and provides that, under California law, registered domestic partners have the same rights and obligations as spouses. Thus, all California laws that apply to spouses now apply equally to registered domestic partners. For instance, under the California Family Rights Act (CFRA), an employer must now allow an eligible employee time off to care for an ill domestic partner. The law recognizes legal unions of the same sex validly formed in other jurisdictions (like Vermont) that are substantially the same as a domestic partnership in California.

INSURANCE COVERAGE FOR DOMESTIC PARTNERS

AB 2208 now requires insurers to provide coverage to an employee's registered domestic partner on terms that are equal to the coverage it provides for an employee's spouse. AB 2208 applies to all individual insurance policies issued or renewed on or after January 1, 2005, and to group plans issued or renewed on or after January 2, 2005. The insurer may require proof of registered domestic partnership status or termination thereof, but only if it requires verification of marital status and notice of dissolution of the marriage. Although this statute only applies to insurers, because of the potential breadth of the California Domestic Rights Act discussed above, it is advisable that employers offer medical insurance coverage to an employee's registered domestic partner on the same terms that medical coverage is offered to spouses of employees. Employees should be advised of this new benefit and handbooks should be revised to reflect this change.

DLSE PROPOSES NEW MEAL AND REST PERIOD REGULATIONS

On December 20, 2004, the California Division of Labor Standards Enforcement (DLSE) filed proposed regulations to clarify the rules implementing the mandatory meal and rest periods The proposed regulations will benefit employers by eliminating some of the confusion over meal and break requirements that has been the basis for numerous lawsuits, particularly class actions, in recent years. Additional information is available from our office or on the DLSE website: www.dir.ca.gov. Written comments may be submitted to the DLSE, by February 14, 2005 at dlsecomments@dir.ca.gov or faxed to (415) 703-4807, attention Allen Perlof, Senior Deputy Labor Commissioner. Three public hearings are scheduled across the state to provide the opportunity for public comment on the proposed regulations.

This update is only a summary. The Law Offices of Peter A. Singler can help you understand the full impact this law may have on your business. If you have any question, please contact Sandra G. Wickland at (707) 823-8719 or SGW@singler-law.com.


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