Publications

Significant Changes to the Family Medical Leave Act ("FMLA") will Take Effect January 16, 2009

• Employees who are immediate family members or "next of kin" to military personnel will be able to take up to 26 work weeks of FMLA leave within a 12-month period.
• The standard 12 weeks of FMLA leave will be extended to employees with family members serving in the National Guard or Reserves to use for qualifying exigencies. Such exigencies include short-notice deployment, childcare and school activities, financial and legal arrangements, counseling, rest and recuperation, post-deployment activities, and any other activities not covered by FMLA, but agreed to by the employer and the employee.
• Under the new "Final Rule," an employee who voluntarily returns to a light duty position, retains the right to job restoration to the same position, or an equivalent one, until the end of the 12-month period that the employer uses to calculate FMLA leave. Thus, if an employee is voluntarily doing "light duty" work, he or she is not on FMLA leave.
• When medical certification is necessary for an employee, supervisors are no longer allowed to contact the employee's healthcare provider. The employer's representative contacting the employee's healthcare provider must be (1) a human resource professional; (2) a leave administrator; OR (3) a management official.
• Where an employee has taken leave as a result of a serious health condition, employers may now request "fitness for duty" certifications for employees returning from such leave where safety concerns exist.
• Employers may disqualify employees from bonuses for hours worked, products sold, perfect attendance, or other incentives, if the employee has not met the goal due to taking FMLA leave, unless the bonuses are paid to employee(s) on equivalent, non-FMLA leave.

It is strongly recommended that employers begin updating the mandatory FMLA display in the workplace to reflect these new policies. Language addressing the new military leave provisions can be printed out from the Department of Labor: www.dol.gov/esa/whd/regs/compliance/posters/fmla.htm

One year Statute of Limitations on filing a complaint with the DFEH may be subject to equitable tolling

Prior to filing an employment discrimination lawsuit, an employee must file a complaint with the Department of Fair Employment and Housing ("DFEH") within one year of the alleged unlawful employment practice. Cal. Gov. Code Section 12960 (d). The California Supreme Court recently held that this deadline may be extended where the complainant has voluntarily engaged in private, pre-suit administrative remedies.

In McDonald v. Antelope Valley Community College Dist., (2008) 45 Cal. 4th 88, Ms. Brown, a library technician's assistant for the College, applied for an open database administrator position within the District. Pursuant to the District's employment policy, all in-house applicants meeting the minimum job qualifications had to be interviewed. Despite meeting the minimum qualifications, Ms. Brown was denied an interview. After protesting, Ms. Brown was interviewed in January 2001 but only after a decision had been made to hire a non-African-American for the position. Ms. Brown filed a formal race discrimination complaint with the College's Chancellor in November 2001. The Chancellor's Office subsequently informed Ms. Brown that she could file a complaint with the DFEH at any time. An investigation by both a private investigator and the College itself resulted in the conclusion that Ms. Brown's allegations were unsupported. While the investigation was being conducted, Ms. Brown filed a complaint with the DFEH on October 11, 2002. Ms. Brown received a right to sue letter on October 24, 2002 and filed a formal lawsuit against the College in October 2003.

Defendant argued that according to Cal. Gov. Code Section 12960 (d), Ms. Brown should have filed her formal complaint with the DEFH by January 2002 because the alleged unlawful employment practice occurred in January 2001. Despite the fact that Ms. Brown's DEFH complaint was filed after the statute of limitations had run, the California Supreme Court upheld the Appellate Court's decision to reverse the defense summary judgment. The Court found that Ms. Brown's voluntary participation in the college's administrative grievance procedures (1) provided the defendant with adequate notice of the claims and (2) was consistent with the benefits of equitable tolling. Additionally, the Court found that the provisions of the FEHA statute should be "liberally interpreted in favor of both allowing attempts at reconciliation and ultimately resolving claims on the merits."

In light of this decision, employers who have pre-suit administrative procedures are encouraged to review their policies to ensure that they include provisions requiring employers to notify employees of the end date of proceedings so that it is clear when the statute of limitations will begin on FEHA claims. Additionally, employers are advised to document any informal complaint procedures including the specific issues being investigated, the exact dates on which the investigation started and ended, and the level of cooperation by the employee.

Employee manuals should be updated to reflect the new "No Texting While Driving" law

As of January 1, 2009 California drivers are banned from reading, writing or sending text messages while driving. Employers are encouraged to update their employee manuals such that they clearly state a "no text messaging while driving" policy.

AB 10 broadens the scope of overtime exemption for Computer Software Professionals

As of September 30, 2008 all full time computer software professionals earning an annual salary of at least $75,000 are exempt from overtime compensation.

AB 10 made two significant changes to California Labor Code Section 515.5's exemption to overtime payments. First, the minimum compensation requirement was extended to include salary earning computer software engineers. Code section 515.5 now exempts both employees who are paid on an hourly basis at no less than $36 per hour and employees paid on a salary basis at no less than $75,000 per year for full time work, which is paid at least once a month and in a monthly amount of not less than $6,250.

Second, it extended the duty requirements by changing the word "and" to the word "or." Previously, computer software engineers had to be proficient in "computer systems analysis, programming, AND software engineering." Now, the computer software engineer need only be proficient in "computer systems analysis, programming, OR software engineering." The employee need only satisfy one of the duty requirements to be exempt.

Employers should review computer software employees' exemption status to ensure that they meet both the minimum compensation requirement and the applicable duties test.


For additional information on these and other employment law updates, employers are encouraged to seek legal counsel.