Tag Archives: technology

Here We Go Again! It’s Time To Conduct Your Mandatory Harassment Training for 2011!

By: Betsy Johnson

For many employers with operations and/or employees in California, 2011 is a harassment training year.  In 2011, especially, it will be critical for employers to get into and/or remain in compliance with California’s sexual harassment training law (Government Code Section 12950.1) which became effective on January 1, 2005, with the passage of AB 1825.  Employers who have not diligently conducted the required training since 2005 should view 2011 as the year to get on track.

Governor Jerry Brown has promised to increase the enforcement of state laws that protect employees in the workplace.  In addition, the Equal Employment Opportunity Commission has pledged to increase its enforcement efforts against employers who fail to provide a workplace that is free from unlawful discrimination and harassment.  This will likely translate into more employee complaints of unlawful discrimination, harassment and retaliation and increased investigations and enforcement proceedings by the California Department of Fair Employment and Housing against employers who are accused of violating these laws.

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Government Seeks Comments on Employer Mandate Related Issues Under Health Reform

As part of the process of planning for implementation of health reform pursuant to the Affordable Care Act, the Department of Treasury, the Department of Labor and the Department of Health and Human Services are working together to develop a series of regulations and administrative guidance. One aspect of the Affordable Care Act provides that employers with 50 or more full-time employees will be considered “applicable large employers” subject to an employer mandate tax effective in 2014.  Under these rules, such large employers will be liable for excise taxes if they have any full-time employees that are certified to receive a premium tax credit or cost-sharing reduction in connection with enrollment in health insurance through a State Exchange and either the employer fails to offer to its full-time employees (and their dependents) the opportunity to enroll in an employer sponsored plan that provides “minimum essential coverage” or offers such a plan that is unaffordable.  These taxes will be assessed monthly and may be 1/12th of $2000 per full time employee (not counting the first 30 full time employees) in the case where no employer plan is offered.  Where a plan is offered but it is unaffordable (as determined under the rules), the tax scheme will be lesser of 1/12 of $3,000 times the number of employees receiving a premium tax credit or 1/12 of $2,000 times the number of full time employees (not counting the first 30 employees in the calculation).   The definition of full-time employee is critical in determining whether and, if so, to what extent an employer may incur these free-rider liabilities. 

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Best Practices for Compliance with the New ADA Regulations

The Equal Employment Opportunity Commission (“EEOC”) recently issued the final Regulations interpreting the ADA Amendments Act of 2008 (“ADAAA”).  The Regulations become effective on May 24, 2011.  It has taken the EEOC over two (2) years from the effective date of the ADAAA (January 2009) to issue the regulations.   The ADAAA and the Regulations are designed to change the focus of inquiries under the American with Disabilities Act of 1990 (“ADA”) from whether an individual’s impairment meets the definition of a “substantial impairment” that constitutes a disability, to issues of discrimination, qualifications, the interactive process, and reasonable accommodation.

The Regulations also lower the bar for finding a “substantial limitation,” and the Regulations take the position that an impairment need not last a particular length of time to qualify under the ADAAA –an impairment lasting less than six months can be “substantially limiting.”  Most ADA claims will now focus on whether the employee is qualified for the job, whether a reasonable accommodation was offered, whether the employer engaged in the interactive process to discuss possible accommodations in good faith, and whether any employer action was caused by an individual’s disability, record of disability, or being regarded as disabled.

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What Employers Need to Know to Avoid Retaliation Claims

So far, 2011 is turning out to be a banner year for decisions expanding the anti-retaliation provisions of several federal statutes.  In recent months, the United States Supreme Court issued three (3) significant decisions which expanded the scope of protections against retaliation for employees.

On January 24, 2011, the Supreme Court issued its decision in Thompson v. North American Stainless, LP, __ U.S. __ (2011), the Court held that protection from retaliation extends beyond the employee who actually opposed discrimination to her fiancé who also worked for the employer.  Title VII of the Civil Rights Act (“Title VII) makes it “an unlawful employment practice for an employer to discriminate against any of his employees … because he has opposed an unlawful employment practice or because he has made a charge under Title VII” (42 U.S.C. § 2000e-3).  The Court concluded that taking a retaliatory adverse action against the fiancé, the employer was hurting the employee who engaged in the protected activity of opposing discrimination at work. 

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Don’t Touch That Phone–It May Cost You! California Applies Different Rules for "On Call" Time

A client recently asked us to provide them with a summary of the California rules for paying non-exempt employees for “on-call” time.  Our client requires non-exempt IT employees to carry cell phone and/or pagers after hours and on weekends so they can respond to requests for assistance and emergencies at the facility which operates on a 24/7 basis.  The employees are required to respond to a call or page within 10-15 minutes and to be available to go to the facility immediately if necessary.  The questions presented were: 1) whether these employees should be paid for the time spent carrying the cell phone or pager and 2) is there a minimum amount of pay the employees must receive if they are required to report to the facility.  We thought that it would be helpful to share our thoughts here. 

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The California Computer Professional Exemption–Are You Getting It Right?

Recently, a client asked us to outline the criteria for the computer professional exemption under the California wage and hour law. We thought that we would share our analysis with you. Given the steady increase in litigation, especially class actions, over the issue of whether an employee is “exempt” or “non-exempt” from overtime it is critical that employers determine if they are properly applying the computer professional exemption to employees who work in non-management, computer-related jobs.  Under California law, the employer bears the burden of proving that an exemption to the overtime and minimum wage rules apply—establishing exempt status is an “affirmative defense” in wage and hour litigation.  The “computer professional” exemption applies to employees who meet both of the following tests: (1) the “duties” test, and (2) the “compensation” test.

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U.S Supreme Court Weighs In on Materiality of Reports of Adverse Effects of Over the Counter Drug That Were Not Statistically Significant

On March 22, 2011 the U.S. Supreme Court handed down a decision which is likely to have serious repercussions for companies in the bio/pharma tech space.  In MATRIXX INITIATIVES, INC., ET AL. v. SIRACUSANO ET AL., the Court rejected Matrixx argument that reports regarding the adverse effect of Zicam, its leading revenue generating product, were not statistically significant and therefore not material.

Noting that the analysis of materiality under the securities laws in fact specific, the Court appears to have relied heavily on two factors:

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Lawyers, Clients, Techonology and how to keep the perspective

In this information era where the internet and the ever changing technologies opens a door to a more interactive, effective and dynamic business world, legal practices are not the exception, but be aware it is a resource not the source.

Internet, document sharing, virtual conferences, and all the other tools, have given law practices a new dimension on clients service. The ability to share documents drafts, information, court decisions, articles and a lot more is making the job of the lawyers less time consuming and a lot speedier. As for the clients, specially the international corporations with branches or interests in different countries and regions, it gives them the chance to unify the legal services rendered to them, under the same “practice standards” in the various jurisdictions.

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