9/21/2005

My excuse this week.

So, first I had a stomach ailment, then a nasssty headcold. Now, tomorrow, I have jury duty. What a week.

9/16/2005

SB 101 Analysis

Purpose:

SB 101 provides clean-up language to SB 1618, which was
passed last year. SB 1618 was enacted to help reduce the
likelihood of identity theft by requiring that by January
1, 2008, all employers must only use the last four digits
or less of an employee's social security number or
otherwise use an existing employee identification number
other than a social security number when providing
employees with an itemized statement of earnings.


Analysis:

Existing law requires an employer to furnish each employee
with an accurate itemized statement showing, among other
things, the name of the employee and his or her social
security number, except that, by January 1, 2008, existing
law requires the employer to include no more than the last
4 digits of the employee's social security number or an
existing employee identification number other than a social
security number on any check provided to an employee.

This Bill would clarify two issues raised by language in SB
1618. First, it strikes the word existing as it relates to
employee identification numbers. Assuming most employers
are not currently using alternative identification numbers
to pay their employees, they must be allowed to establish
new employee identification numbers to implement the
provisions of the bill.

Legislative Track Update

AB 48 is on the Governor's desk.
AB 640 is dead.
AB 875 is on the Governor's desk.
AB 879 is on the Governor's desk.

SB 101 is law; it amends LC 226 re: pay stubs.
(summary to follow)

SB 174 is on the Governor's desk.
SB 285 is dead.
SB 862 is dead.

SB 940 has been VETOED by the Governor (didn't pass with a 2/3ds majority in either house)

Hooters Employee Handbook

After drafting a number of employee handbooks, I (serioulsy) often wondered how I would tackle a client like hooters. Well, here's their handbook, so I guess I know now.

9/12/2005

Locker Suspended

The San Francisco Chronicle has this article:

Miles Locker has been suspended from his job in the Department of Industrial Relations for taking part in an informal "educational'' panel hosted by the San Francisco Bar Association's Barristers Club.

The panel's topic: "Meal and Rest Period Litigation.''

So, does this violate section 96(k)?

9/11/2005

Ross v. Ragingwire Telecommunications, Inc.

Guest Blogger: Steven M. Chanley

Ross v. Ragingwire Telecommunications, Inc.

The Court of Appeal (Third Appellate District) holds that an employer does not violate the FEHA’s prohibition against disability discrimination for firing an employee whose pre-employment screening tested positive due to physician-prescribed marijuana smoking. Although the drug use was lawful under California’s Compassionate Use Act of 1996, it remains unlawful under federal law. Nothing in the FEHA requires an employer to tolerate current illegal drug use. Moreover, the California statute “simply permits a person to use marijuana for medicinal purposes in our state without incurring state criminal law sanctions. The initiative says nothing about protecting the employment rights of those who do so.”

Comment: It is difficult not to be sympathetic to the plight of those who must rely legitimately on mind-altering drugs to mitigate their physical pain. However, it seems a non-starter to argue that the employment laws require an accommodation in the form of permitting illegal drug use.

9/07/2005

Chamber of Commerce v. Lockyer

Guest blogger: Steven M. Chanley

Chamber of Commerce v. Lockyer (9th Cir.)

The Ninth Circuit Court of Appeals struck down on NLRA preemption grounds a California statute that forbids a recipient of state funding from using any of those funds to promote or deter union organizing. Although somewhat facially neutral, the problem was that, in practice, the statute had a disparate impact on an employer’s right of free speech as to matters falling within the NLRA’s coverage. Accordingly, the statute was found to be preempted under both the Garmon and Machinists preemption doctrines.

Comment: Another example of the NLRA forbidding states from putting their thumb on one side of the scale or the other in matters of unionizing. Isn’t it best just to leave such matters to a well-informed employee electorate, whose personal rights are at stake anyway?

9/01/2005

Donald Green v. State of California

Guest Blogger: Steven M. Chanley

Donald Green v. State of California

Court of Appeal in the Fourth District holds that it is the defendant’s burden to prove plaintiff’s incapacity as an affirmative defense and not plaintiff’s burden to prove his capacity to perform as part of his prima facie case of disability discrimination under the FEHA. The holding specifically disapproves the Judicial Council jury instructions on the issue, as well as Brundage v. Hahn, both of which place the burden on the plaintiff as part of his prima facie case.

Comment: This is another unfortunate case where California law is made to deviate from federal ADA precedent in a way that makes no sense. Being a qualified individual with a disability should be considered a baseline standing requirement, properly placing it within the claimant’s prima facie case. This one is destined for depublication.