2011 Legislative Update

The following is a synopsis of the notable changes in California and federal employment laws that were enacted or modified in 2010.

California LawSB 1340 – Mandatory Organ Donation Leave
Requires private employers to allow employees to take paid leaves of absence for organ and bone marrow donation. Employees who have exhausted all other sick leave are entitled to take up to 30 days of paid leave for organ donation and up to 5 days of paid leave for bone marrow donation. Additionally, employers must restore an employee returning from organ or bone marrow donation leave to the same or an equivalent position as he or she had prior to taking the leave. An employer may not interfere with an employee who desires to take such leave and cannot later retaliate against an employee for doing so.

AB 569 – Meal Period Exemptions for Certain Unionized Industries
Labor Code section 512 requires employers to provide thirty-minute meal periods to employees working more than five hours per work day, unless waived by mutual consent. AB 569 amends section 512 to exempt employees in construction occupations, commercial drivers, security officers, and employees of electrical and gas corporations or local publicly owned electrical utilities from the meal period requirement. This exemption only applies if: 1) the employee is covered by a valid collective bargaining agreement; and 2) the agreement contains specified terms including meal period provisions.

AB 2364 – Unemployment Benefits for Domestic Violence Victims
California law provides unemployment insurance benefits to eligible employees who are unemployed through no fault of their own. Previously, employees were eligible if they left employment to protect their children from domestic violence abuse. AB 2364 amends those provisions to allow employee unemployment eligibility if they leave to protect their family from domestic violence abuse.

AB 1814 – FEHA Does Not Prohibit Adjustments to Retiree Health Benefits
Generally, California’s Fair Employment and Housing Act (FEHA) prohibits discrimination in the terms, conditions and privileges of employment based on age. AB 1814 creates a narrow exception to this rule, specifying that FEHA does not prohibit employers from providing health care reimbursement plans to retired persons that are altered, reduced or eliminated when the retiree becomes eligible for Medicare benefits. This exception only applies to health benefits offered to “retired persons.” AB 1814 essentially conforms California state law to the federal Age Discrimination in Employment Act and is intended to encourage employers to continue to offer modest “bridge” retiree health benefits to retirees before they become eligible for Medicare. AB 1814 applies to all retiree health benefit plans in effect on or after January 1, 2011.

AB 2774 – OSHA “Serious” Violations
Provides that if the California Occupational Safety and Health Administration (Cal/OSHA) can demonstrate that there is a “realistic possibility” that death or serious physical harm could result from an OSHA violation, then a rebuttable presumption that the violation is “serious” will be established. An employer can rebut this presumption by demonstrating that it took reasonable steps prior to the violation and effective action to eliminate employee exposure once the violation occurred. AB 2774 defines “Serious physical harm” as any injury or illness, specific or cumulative, occurring in the place of, or in connection with, employment that results in inpatient hospitalization, the loss of any part of the body, serious permanent disfigurement, or impairment of any part of the body sufficient to cause it to become permanently and significantly reduced in efficiency.

No Increase in Computer Professional Salary for Exemption Purposes
Labor Code section 515.5 provides that if computer software employees perform certain enumerated duties and their hourly pay is not less than the statutorily specified rate, then those employees are exempt from overtime requirements. The Division of Labor Statistics and Research, the agency responsible for determining if adjustments need to be made to this rate, has determined for the second year in a row that the rates will remain unchanged. The minimum hourly rate will remain at $37.94, the minimum monthly salary will remain at $6,587.50, and the minimum annual salary will remain at $79,050.

Federal Law
The Obama Administration primarily focused on contentious issues such as health care, financial reform, and immigration reform; therefore, there were no significant federal labor and employment legislative developments in 2010.