Just when employers were starting to get familiar with all of the recent changes to the Family and Medical Leave Act ("FMLA), last week President Obama signed into law yet another expansion of the FMLA military leave provisions. These changes are found in the Fiscal Year 2010 National Defense Authorization Act (H.R. 2647). The new law, which is effective immediately, expands the so-called "qualifying exigency" and "military caregiver" leave provisions under the FMLA.

In January 2008, Congress amended the FMLA to provide several new leave provisions, including so-called qualifying "exigency leave" and "military caregiver leave".

· Qualifying Exigency Leave. Provides up to 12 weeks of unpaid leave for urgent needs related to a call to active service by National Guard and reservists. The exigency leave allows family members of the reservist (spouse, son, daughter, or parent) up to a total of 12 weeks off to deal with the sudden call to duty. This time can be taken all at once or incrementally as needed. Under the new law (H.R. 2647) qualifying exigency leave benefits are expanded to include family members of active duty service members. Prior to this enactment, only family members of National Guard and Reservists were eligible for qualifying exigency leave.

 

· Military Caregiver Leave. An employee may take up to 26 weeks of unpaid leave to care for a family member (spouse, son, daughter, parent, or next of kin) who is injured while serving on active military duty. Under the new law (H.R. 2647) the caregiver leave provision is expanded  to include care for veterans who are undergoing medical treatment, recuperation or therapy for serious injury or illness that occurred any time during the five years preceding the date of treatment.

Keep in mind that to be eligible for either of these leaves, employees must work for an organization with a total of 50 or more employees  (within a 75-mile radius) and must have worked at least 1,250 hours in the 12-month period immediately preceding the request for time off.

 

With this new development, employers need to obtain a new Federal "Equal Employment Opportunity in the Law" poster, which contains these new FMLA provisions, as well as the July 2009 federal minimum wage increase and the new information about GINA (Genetic Information Non-discrimination Act of 2008). Posters can be obtained directly from the Equal Employment Opportunity Commission, at www.eeoc.gov or various private sites, such as www.calbizcentral.com. The new posters must be posted by November 21, 2009.

· GINA. The new GINA regulations become effective November 21, 2009. GINA protects applicants and employees from discrimination based on genetic information, restricts employers' acquisition and disclosure of genetic information, and defines genetic information. Under GINA, discrimination based on genetic information is prohibited in hiring, promotion, discharge, pay, fringe benefits, job training, classification, referral and other aspects of employment.

 

Governor Schwarzenegger recently vetoed a number of significant employment related bills.  It's important to understand the proposals because they are likely to come up again in the future.

· Speak Only English Rules. The most notable bill struck down by the Governor is S.B. 242, which would have made it unlawful for employers to discriminate against an employee based on the employee's primary language, or to ban employees from speaking any language in the workplace, unless there is a business necessity for prohibiting employees from speaking a particular language. Keep in mind that while an employer can still require employees to be fluent in a particular language, employers must be careful and not to run afoul of the job bias laws prohibiting discrimination of the basis of ethnicity and/or national origin.

· Equal Pay. (A.B. 793) This bill would have amended California antidiscrimination law to mirror the requirements of the newly enacted federal Fair Pay Act (FPA), which increases the amount of time an employee has to file a pay discrimination claim and adds penalties for equal pay violations. The Governor reasoned that a separate California law was unnecessary since the new FPA covers California employers. However, the FPA only applies to claims brought under federal law and does not apply to claims for wages under the California Labor Code.

· Employment Records. (A.B. 527) This bill would have amended existing law regarding investigations into payroll practices, providing that if the Labor Commissioner found that an employer intentionally falsified an employee's payroll records, the records would be presumed false for that entire pay period and disregarded.

· Employment Contracts. (A.B. 335) This bill would have invalidated any provision in an employment contract that stated that the company and a California employee agreed to apply another state's law when resolving an employment dispute.

· Employee Credit Reports. (A.B. 943)Under current law, an employer can run a credit report on job applicants and employees if the employer gets written authorization from the applicant/employee and follows applicable notice requirements. This bill would have allowed applicants/employees to refuse authorizing the credit check and made it unlawful for an employer to refuse to hire, fire, or to in any way discriminate against an employee who did so unless the employee's credit history was essential to the employee's job duties.

While these bills were vetoed by the Governor, we bring them to your attention because it is likely we will see most of these bills again in one form or another in the next year.

Your Firm contact is ready to answer your questions relating to the new FMLA provisions and other legislative developments.