Feature
by Margaret J. Grover
In 2001, the California legislature enacted an eclectic group of laws relating to employment. In addition, the courts interpreted California employment laws to provide even greater anti-harassment protections than are available under federal law. A few of the changes that may affect professional property managers are outlined below. Also included are some of the changes likely to trip up employers who are not aware of them.
Minimum Wage Increase
California’s minimum wage increased for the second year in a row. As of January 1, 2002, the new minimum wage is $6.75 per hour, an increase of 50 cents per hour. At the same time, the maximum amount of free rent that can be credited toward minimum wage obligations will increase. Free rent can be used toward minimum wage obligations in an amount equal to two-thirds of the fair rental value of the apartmentor$381.20permonth, whichever is less. If the employer employs both members of a couple, the cap rises to $563.90 per month. Remember, if an employee is required to live in an apartment as a term or condition of employment, he or she can be charged only two-thirds of the fair rental value. Moreover, if the employer charges any rent for the apartment, rent credit cannot be used to satisfy the minimum wage obligations.
Accommodation of Breast Feeding
Employers must accommodate an employee who wishes to express breast milk for her infant child. As one part of the accommodation, the employer must provide a reasonable amount of break time for the employee to express milk. This break time may run concurrently with any other break time already provided to the employee. If it is not possible for the breaks to run concurrently, the employer need not pay the employee for any breaks provided specifically for the purpose of expressing breast milk.
The employer is also obligated to provide a room, or other location, in which the employee can express milk. The location should be near the employee’s regular workstation, and may be the workstation if it provides sufficient privacy. The employer may not, however, require employees to use a toilet stall in order to express breast milk.
The Labor Commissioner can cite employers who fail to provide lactation accommodations. They may also be exposed to civil penalties of $100 per violation.
Limitation on English-Only Rules
Employers may not adopt an “English-Only” rule, nor may they adopt any policy prohibiting the use of any language in the workplace, unless the policy is justified by business necessity. A business necessity is “an overriding legitimate business purpose such that the language restriction is necessary to the safe and efficient operation of the business.” In addition, the language restriction must effectively fulfill the business purpose it is supposed to serve, and the employer cannot accomplish the business purpose through some alternative practice that has a less discriminatory impact. Also, any policy restricting language in the workplace will not be enforceable unless the employer has notified its employees of the circumstances and the time when the language restriction is to be observed and of the consequences for violating the policy.
Changes in Unemployment
With the economy in slow gear, unemployment claims and the employer’s ability to limit exposure to those claims have become more significant. California recently adopted its first increase in unemployment insurance benefits since 1989. The legislation, which amends California Unemployment Code Section 1280, provides for a series of benefit increases that will move California from its current rank of 46 among the 50 states to a position in the top one-third of the nation.
In 2001, the maximum unemployment insurance benefit was $230 per week. For claims filed after January 6, 2002, the maximum benefit will increase to $330. A second increase, effective January 5, 2003, will fix the maximum benefits at $370 per week. The maximum weekly benefit will increase to $410 for claims filed on or after January 4, 2004, and to $450 for claims filed on or after January 3, 2005.
These increases will not affect claims filed before their effective dates. Valid unemployment insurance claims last for one year and the benefit amount on the claim cannot change during the year.
Another change that went into effect as of January 1, 2002, provides that an unemployed individual is not disqualified for unemployment compensation benefits solely because he or she is only available for part-time work. In addition, if an employee has received compensation from an employer who has failed to provide advance notice of a facilityclosurerequiredbythefederal Worker Adjustment Renotification and Training Act, that compensation will not be construed as wages for purposes of determining eligibility for unemployment compensation benefits.
California Court Limits Employers’ Defenses To Sexual Harassment Claims
California employers cannot use their anti-harassment policies, even when coupled with the employee’s failure to report a problem, to defend claims that a supervisor is sexually harassing an employee. The United States Supreme Court under Title VII—the federal law prohibiting discrimination in employment—held that if the employee has suffered no tangible harm, an employer can establish a defense to a sexual harassment claim. To do so, an employer must prove two things: first, that the employer exercised reasonable care to prevent and promptly correct harassing behavior; and, second, that the employee had unreasonably failed to take advantage of the corrective and preventive measures.
A California appellate court recently ruled that this defense is not available to California employers. Instead, a California employer will be strictly liable for sexual harassment by an agent or a supervisor, even if the employer has adopted anti-harassment policies, conducted training and had no knowledge of the harassment. If a co-worker does the harassment, however, the employer may still defend the claims by asserting that he/she did not know of the harassment and, upon learning of the harassment, took immediate corrective action.
Even though California employers may have lost this defense, they are still required to have anti-harassment policies in place. In addition, providing anti-harassment training, investigating all charges of harassment and taking prompt effective remedial action are still the most practical means an employer has to avoid being the target of a harassment lawsuit.
Growth of Wage and Hour Claims
In 2001, California experienced a tremendous growth in wage and hour claims. Many of them were filed as class actions, or quasi-class actions, claiming that a certain group of employees were misclassified as exempt, when they should have been receiving overtime benefits. For larger employers, these types of claims have resulted in multi-million dollar verdicts that include back pay, interest, penalties and attorney’s fees. The publicity generated by large verdicts will often trigger an onslaught of other cases against all types of employers, as the employees recognize their rights or potential rights. To protect your business, make sure that all employees are correctly classified and compensated and that you maintain the necessary hour and payroll records.
The opinions expressed in this article are those of the author and do not necessarily reflect the viewpoint of the SFAA or the SF Apartment Magazine. Margaret Glover is a partner in Haight, Brown & Bonesteel’s San Francisco office, where she is one of the lead attorneys in the firm’s employment group. For more information, she can be reached at 415-986-7700, ext. 356, or by e-mail. © Copyright 2002.