Dec 31, 2001 Employment Discrimination

Changes in California Labor and Employment Law to Take Effect on January 1, 2002

During the year 2001, several pieces of significant legislation were enacted in California that effectively expand employee rights and legal protections. Recent legislation also requires California employers to post new posters from the Department of Fair Employment and Housing, California Occupational Health and Safety Administration and Workers Compensation.

California increases minimum wage

Effective January 1, 2002, California’s minimum wage increases from $6.25 per hour to $6.75 per hour. This increase in the state’s minimum wage also affects the minimum compensation employers may pay to exempt employees. To qualify as exempt from the overtime provisions of California law, executive, professional and administrative employees must earn a salary that equals or exceeds two times the state minimum wage. Thus, the minimum annual salary for exempt employees will increase to $28,080 effective January 1, 2002.

Domestic partnerships receive benefits currently offered only to married couples

Effective January 1, 2002, the following benefits will be available to those who qualify as domestic partners.

  • Sick leave: Employers must allow employees to use sick time to care for an ill domestic partner or child of a domestic partner. Employees may use accrued and available sick leave in an amount not less than what would be accrued and available as sick leave during six months of employment.
  • Group health careProviders of group health care and disability insurance plans that offer hospital, medical, or surgical expense benefits are required to offer coverage to employers for domestic partners of employees to the same extent, and subject to the same terms and conditions, as provided to other dependents.
  • Unemployment eligibility: Employees relocating with a domestic partner to a place from which commuting is impractical and to which no job transfer by the employer is available are eligible for unemployment benefits.
  • Disability benefitsExisting law permits a married person to file a disability claim on behalf of his or her eligible, but mentally incompetent, spouse. The new law extends this same right to domestic partners.

California limits employers’ right to implement English-only policies

Effective January 1, 2002, no California employer may adopt or enforce a policy prohibiting the use of any language in the workplace unless the policy is:

  • justified by a business necessity; and
  • the employer has notified employees of the restriction, when it is required to be observed, and the consequences of a violation.

The law defines “business necessity” as an overriding legitimate business purpose making the language restriction necessary to the safe and efficient operation of the business. Of course, the language restriction must actually fulfill the business purpose the employer contends it serves.

Expansion of employer liability for discrimination and retaliation

Existing law prohibits employers from discriminating against or discharging an employee because the employee files a claim with the California Labor Commissioner, testifies in a case before the Labor Commissioner, or exercises his or her rights under the California Labor Code. The new law extends this provision to cover applicants for employment and for job training programs. Thus, employers may not refuse employment to or otherwise discriminate against, a job or training applicant because the applicant exercises rights provided by the Labor Code.

The new law also extends these same protections to employees and applicants who engage in lawful off-duty conduct that occurs off the employer’s premises. However, the law does not invalidate collective bargaining agreements or employment contracts that protect an employer against conduct that directly conflicts with the employer’s essential interests when the conduct would disrupt the employer’s operation.

Employers must provide reasonable accommodations for women to pump breast milk at work

This new law requires all employers to provide a reasonable amount of break time to an employee wishing to pump breast milk for her infant child. If possible, such break time runs concurrently with any break time already provided to the employee. Break time used to pump breast milk that does not run concurrently with other break time is unpaid.

Employers are also required to make reasonable efforts to provide the employee with an appropriate place (other than a toilet stall) close to the employee’s workstation to pump breast milk. Such location could be the employee’s own work area if it meets the law’s privacy requirement.

Anti-harassment provisions of California’s Fair Employment and Housing Act now apply to certain employees of religious entities

In the past, to preserve the religious freedom of nonprofit religious corporations and associations, these entities have been exempt from many provisions of California’s Fair Employment and Housing Act (“FEHA”). However, effective January 1, 2002, the provisions of FEHA prohibiting workplace harassment are applicable (with certain exceptions) to employees who perform non-religious duties at a health care facility operated by a religious corporation or association. In order for FEHA to apply to employees at such a facility, the provision of health care must be available to non-adherents of the religion.

Exception to California’s at-will employment provision for some janitorial and building maintenance employees

The “Displaced Janitor Opportunity Act” prohibits at-will termination of janitors and building maintenance personnel under certain circumstances. The law applies only to contracts for the provision of janitorial or building maintenance services entered into on or after January 1, 2002.

Under the new law, contractors and subcontractors who are awarded janitorial or building maintenance services contracts or subcontracts at a particular job site or sites must retain, for a period of 60 days, qualified employees who were employed at that site by the previous contractor or subcontractor.

During the initial 60-day period, employees cannot be discharged without cause. At the conclusion of this initial period, each retained employee must receive a written performance evaluation and must be retained thereafter on an at-will basis if their performance was satisfactory.

New posting requirements for California employers

Effective January 1, 2002, California employers must post the following:

  • The new version of California’s employment discrimination poster entitled “Harassment or Discrimination in Employment Is Prohibited by Law” (DFEH poster number 162). The poster has been changed to reflect California’s new law restricting English-only policies;
  • CAL/OSHA’s “Safety and Health Protection on the Job” poster, which has been updated to include New CAL/OSHA office addresses and phone numbers; and
  • A workers compensation poster which now includes the carrier’s address to enable employees to file claims.

Employers can obtain these posters by contacting either of the following:

Poster Distribution Center
Department of Industrial Relations
Public Information Office
P.O. Box 420603
San Francisco, CA 94142-0603

California Chamber of Commerce
3255 Ramos Circle
Sacramento, CA 95827