Blog: The Labor & Employment Law Blog

Pursuant to California Division of Workers’ Compensation (DWC) regulations, employers must post the new DWC 7 Notice adopted effective June 2010, no later than October 8, 2010. The DWC 7 form is the “Notice to Employees – Injuries Caused by Work.” This Notice provides employees with information on workers’ compensation coverage and where to get medical care for work injuries. The Notice must be posted in English and Spanish at each California work site in a conspicuous location frequented by employees during the hours of the work day.

Usually the DWC 7 form is included in an employer’s complete California and Federal Employment Poster that is updated each year. However, if employers wait to post the new DWC 7 form when they update their Poster at the beginning of 2011, they run the risk of penalties. California law provides that failure to provide employees with this Notice is a misdemeanor that can result in a civil penalty of up to $7,000 per violation.

Employers can obtain a copy of the new DWC 7 (6/10) Notice by going to: www.dir.ca.gov/dwc/forms/DWCForm7_2010.pdf

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Lizbeth “Beth” West is a shareholder in the Labor and Employment Law Section and Disputes, Trials & Appeals Section at Weintraub Genshlea Chediak. Beth’s practice focuses on counseling employers in all areas of employment law, and defending employers in state and federal court, as well as before administrative agencies. She has extensive experience in defending wage and hour claims, and complex whistle-blowing and retaliation claims. She also provides training services on various employment issues, such as sexual harassment and violence in the workplace. If you have any questions about this Legal Alert or other employment law related questions, please feel free to contact Beth West at (916) 558-6082. For additional articles on employment law issues, please visit Weintraub’s employment law blog at www.thelelawblog.com.

A recent opinion from a federal appellate court serves as yet another cautionary tale for employers in the area of disability accommodations. The Ninth U.S. Circuit Court of Appeals’ decision in EEOC v. UPS Supply Chain Solutions suggests that employers must take proactive steps to ensure that accommodations being provided to a given disabled employee are not only reasonable but effective. The outcome in this case also underscores the need to commence and continue the interactive process and to consult with legal counsel promptly when confronted with disability-accommodation requests or issues.

Mauricio Centeno, who was deaf since birth, worked as a junior clerk in the accounting department at a UPS facility in California. He was able to perform his job duties without a sign-language interpreter. However, he sent a number of email messages to his supervisors between 2002 and 2005 requesting a sign-language interpreter to assist him in department meetings. UPS agreed to provide an interpreter at monthly meetings but not weekly ones. Additionally, UPS arranged to provide Centeno with notes or other summaries of discussions at the weekly meetings. UPS also urged him to refer to a dictionary to learn the meaning of any words in those notes or summaries that he did not understand, even though he reported that he did not comprehend some written communication.

At one point in April 2005, Centeno “said an inappropriate word and made an inappropriate gesture” to some coworkers who had angered him. UPS provided a sign-language interpreter upon meeting with Centeno to discuss the incident, and also during a subsequent meeting to explain terms that Centeno did not understand in a written warning given to him. However, UPS did not provide a sign-language interpreter in a later meeting to explain terms that Centeno did not comprehend in the company’s sexual-harassment policy and in a quiz concerning the application of that policy.

In performance reviews between 2002 and 2006, supervisors repeatedly criticized Centeno for failing to obtain training on an Excel spreadsheet program. However, Centeno could not understand the written materials regarding use of the Excel spreadsheet. After setting a December 2007 deadline for Centeno to complete such training, UPS ultimately provided a sign-language interpreter to assist him – but not until September 2007.

Although there is no indication that UPS ever disciplined Centeno inappropriately, the EEOC filed a lawsuit in federal court alleging that UPS had failed to reasonably accommodate Centeno’s disability. The lower court dismissed the case without a trial, ruling that UPS was not required to provide a sign-language interpreter to accompany Centeno during regular staff meetings, routine disciplinary sessions, or training seminars. However, the appellate court ruled that a jury trial was needed to decide whether UPS had provided reasonable accommodations.

In particular, the Ninth Circuit was persuaded by the fact that Centeno “did not have an opportunity to express his questions . . . or share his ideas with the rest of the department” at the weekly meetings. Thus, the Court of Appeals ruled that a jury should determine “whether the agendas, contemporaneous notes, and written summaries contained information sufficient to enable a [hearing-impaired] person reading those documents to enjoy the same benefits and privileges of attending and participating in the weekly meetings [sessions and seminars] as other employees.”

Likewise, regarding the Excel training, the appellate court said a jury would have to weigh the facts to decide whether UPS improperly delayed in terms of providing Centeno “with the accommodation he needed in order to receive the training.” Finally, the Ninth Circuit opined that reasonable jurors “could conclude that . . . UPS was aware or should have been aware that Centeno needed an . . . interpreter to understand the Anti-Harassment Policy” even if he did not expressly request such an interpreter at that time. Although “an employer has discretion to choose among effective modifications, and need not provide the employee with the accommodation he or she requests or prefers,” the appellate court concluded that “an employer cannot satisfy its obligations under the ADA by providing an ineffective modification.”

While this case involved a deaf employee, the decision should not be viewed as applying only to accommodations for hearing impairments. On the contrary, the opinion highlights the importance of monitoring accommodations provided to an employee to make sure that they are enabling the employee to realize all the benefits and privileges of employment. Similarly, it is vital for employers to make sure that a disabled employee is given all reasonable tools that are needed to understand workplace policies and procedures. It is not sufficient that the accommodations merely enable the employee to avoid discipline.

This decision also reinforces the need to engage the interactive process right away, to monitor periodically the effectiveness of any accommodation provided, and to consult with legal counsel regarding what may or may not constitute a reasonable and effective accommodation. Taking such steps may seem onerous, but they often help employers to reduce their exposure to disability-discrimination claims. At the same time, such precautions are usually economical by comparison to the costs associated with litigation.

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Brendan J. Begley is an associate at Weintraub Genshlea Chediak and spearheads the firm’s Appeals and Writs group and is a member of the firm’s Labor and Employment and Litigation groups. He represents management in workplace law and litigation, and he is an Appellate Law Specialist certified by the State Bar of California Board of Legal Specialization.If you have any questions about this Legal Alert or other employment law related questions, please feel free to contact Brendan J. Begley at (916) 558-6024. For additional articles on employment law issues, please visit Weintraub’s law blog at www.thelelawblog.com.

President Obama signed H.R. 4851 into law on April 15, 2010. The new law amends the American Recovery and Reinvestment Act of 2009 (“ARRA”) yet again to extend the 65% COBRA premium assistance through May 31, 2010.

The COBRA subsidy was originally provided as part of the ARRA in 2009. If an employee is involuntarily terminated on or before May 31, 2010 and is otherwise eligible for COBRA, he or she is eligible to receive a 65% subsidy in his or her COBRA premiums. This means the former employer pays 65% of the health insurance premium under COBRA and the employee pays the remaining 35%. Employers can then apply for a tax credit for the portion of the COBRA premium they pay.

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Lizbeth “Beth” West is a shareholder in the Labor and Employment Law Section and Disputes, Trials & Appeals Section at Weintraub Genshlea Chediak. Beth’s practice focuses on counseling employers in all areas of employment law, and defending employers in state and federal court, as well as before administrative agencies. She has extensive experience in defending wage and hour claims, and complex whistle-blowing and retaliation claims. She also provides training services on various employment issues, such as sexual harassment and violence in the workplace. If you have any questions about this Legal Alert or other employment law related questions, please feel free to contact Beth West at (916) 558-6082. For additional articles on employment law issues, please visit Weintraub’s employment law blog at www.thelelawblog.com.

On March 2, 2010, President Obama signed the Temporary Extension Act of 2010 (H.R. 4691) that, among other things, extends the eligibility period for the COBRA subsidy provided in the American Recovery and Reinvestment Act (ARRA) for an additional 30 days.

The new legislation extends the eligibility date for the COBRA subsidy from February 28, 2010 to March 31, 2010.

The COBRA subsidy provisions under the ARRA provide that eligible employees (those who are “involuntarily terminated” within the stated period) pay 35% of the premium costs and employers pay the other 65%. The employer can then file for a federal tax credit for the premium subsidy it pays.

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Lizbeth “Beth” West is a shareholder in the Labor and Employment Law Section and Disputes, Trials & Appeals Section at Weintraub Genshlea Chediak. Beth’s practice focuses on counseling employers in all areas of employment law, and defending employers in state and federal court, as well as before administrative agencies. She has extensive experience in defending wage and hour claims, and complex whistle-blowing and retaliation claims. She also provides training services on various employment issues, such as sexual harassment and violence in the workplace. If you have any questions about this Legal Alert or other employment law related questions, please feel free to contact Beth West at (916) 558-6082. For additional articles on employment law issues, please visit Weintraub’s employment law blog at www.thelelawblog.com.

Download: LAW ALERT – DOL Model Notices COBRA Susbidy Extension.pdf

On January 19, 2010, the Department of Labor (“DOL”) issued model notices to help plan administrators and employers comply with COBRA notice requirements as dictated by the American Recovery and Reinvestment Act (“ARRA”), as amended by the Department of Defense Appropriation Act, 2010 (“2010 DOD Act”).

There are three DOL model notices that plan administrators and employers can utilize: 1) the Updated General Notice; 2) the Premium Assistance Extension Notice; and 3) the Updated Alternative Notice. Below is a brief summary of the DOL’s explanation of the notice requirements in connection with the extended COBRA subsidy and which model notices should be used.

1. Updated General Notice

Plans subject to the Federal COBRA provisions must provide the Updated General Notice to all qualified beneficiaries (not just covered employees) who experienced a qualifying event at any time from September 1, 2008 through February 28, 2010, regardless of the type of qualifying event, and who have not yet been provided an election notice. This model notice includes updated information on the premium reduction as well as information required in a COBRA election notice.

2. Premium Assistance Extension Notice

Plan administrators must provide notice to certain individuals who have already been provided a COBRA election notice that did not include information regarding ARRA, as amended. The model Premium Assistance Extension Notice includes information about the changes made to the premium reduction provisions of ARRA by the 2010 DOD Act. Listed below are the affected individuals and the associated timing requirements.

· Individuals who were “assistance eligible individuals” as of October 31, 2009 (unless they are in a transition period – see below), and individuals who experienced a termination of employment on or after October 31, 2009 and lost health coverage (unless they were already provided a timely, Updated General Notice) must be provided notice of the changes made to the premium reduction provisions of ARRA by the 2010 DOD Act by February 17, 2010;

· Individuals who are in a “transition period” must be provided this notice within 60 days of the first day of the transition period. An individual’s “transition period” is the period that begins immediately after the end of the maximum number of months (generally nine) of premium reduction available under ARRA prior to its amendment. An individual is in a transition period only if the premium reduction provisions would continue to apply due to the extension from 9 to 15 months and they otherwise remain eligible for the premium reduction.

3. Updated Alternative Notice

Insurance issuers that provide group health insurance coverage must send the Updated Alternative Notice to persons who became eligible for continuation coverage under a State law. Continuation coverage requirements vary among States and issuers should modify the model notice as necessary to conform it to the applicable State law. Issuers may also find the model Premium Assistance Extension Notice or the updated model General Notice appropriate for use in certain situations.

The model notices can be obtained at the DOL website: www.dol.gov/ebsa/COBRAmodelnotice.html.

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Lizbeth “Beth” West is a shareholder in the Labor and Employment Law Section and Disputes, Trials & Appeals Section at Weintraub Genshlea Chediak. Beth’s practice focuses on counseling employers in all areas of employment law, and defending employers in state and federal court, as well as before administrative agencies. She has extensive experience in defending wage and hour claims, and complex whistle-blowing and retaliation claims. She also provides training services on various employment issues, such as sexual harassment and violence in the workplace. If you have any questions about this Legal Alert or other employment law related questions, please feel free to contact Beth West at (916) 558-6082. For additional articles on employment law issues, please visit Weintraub’s law blog at www.thelelawblog.com.

Download: Law Alert. COBRA Subsidy Extended.PDF

President Obama signed the “Fiscal Year 2010 Defense Appropriations Act” (“DAA”) on December 21, 2009. The DAA provides two important changes to the COBRA subsidy that was established under the “American Recovery and Reinvestment Act of 2009” (“ARRA”) earlier this year.

The COBRA subsidy provisions under the ARRA provide that eligible employees (those who are “involuntarily terminated” within the stated period) pay 35% of the premium costs and employers pay the other 65%. The employer can then file for a federal tax credit for the premium subsidy it pays.

The important changes made by the DAA are:

1. Employees who are involuntarily terminated at any time prior to February 28, 2010 (rather than December 31, 2009) may be eligible for the subsidy; and

2. The maximum period an eligible employee may receive the subsidy is fifteen (15) months rather than nine (9) months.

Employees who reached the end of the original nine (9) month period before the enactment of the DAA, have sixty (60) days from the enactment date to pay their portion of any missed premiums, or thirty (30) days after receipt of a notice of extension from the health plan administrator, whichever is later.

The DAA requires that employers notify current and future COBRA beneficiaries of the new fifteen (15) month premium subsidy period within sixty (60) days from enactment (by February 17, 2010) unless an individual’s COBRA “qualifying event” occurs after December 19, 2009 in which case the notice must be sent pursuant to the general time requirements under COBRA. It also permits employers to offset future COBRA premiums or issue a refund check to beneficiaries who overpaid their COBRA premiums because they paid the entire amount without any subsidy.

The DAA also clarifies that an employee’s or beneficiary’s eligibility for COBRA need not occur before February 28, 2010 in order for the individual to be eligible for the subsidy. Rather, it is the COBRA “qualifying event” (“involuntary termination” of an employee) that must occur on or before February 28, 2010.

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Lizbeth “Beth” West is a shareholder in the Labor and Employment Law Section and Disputes, Trials & Appeals Section at Weintraub Genshlea Chediak. Beth’s practice focuses on counseling employers in all areas of employment law, and defending employers in state and federal court, as well as before administrative agencies. She has extensive experience in defending wage and hour claims, and complex whistle-blowing and retaliation claims. She also provides training services on various employment issues, such as sexual harassment and violence in the workplace. If you have any questions about this Legal Alert or other employment law related questions, please feel free to contact Beth West at (916) 558-6082. For additional articles on employment law issues, please visit Weintraub’s law blog at www.thelelawblog.com.

The sixty-five percent (65%) COBRA premium subsidy provided for in the American Recovery and Reinvestment Act of 2009 (ARRA) will come to an end on November 30, 2009 for some qualified beneficiaries.

By way of background, the ARRA created the COBRA subsidy for those qualified beneficiaries who were “involuntarily” terminated (including not just layoffs but also poor performance terminations) from their employment between September 1, 2008 and December 31, 2009, and provided for a 65% premium subsidy for up to nine (9) months. The first date of the subsidy under the ARRA was March 1, 2009. Therefore, for those qualified beneficiaries who received the subsidy as of March 1, 2009, their nine months expires November 30, 2009. Qualified beneficiaries who became eligible subsequent to March 1, 2009 will have the applicable nine month period following the beginning date of their subsidy payments.

What Should Employers and/or Plan Administrators Do?

Provide beneficiaries with sufficient notice prior to the expiration of their COBRA subsidy. The notice should advise them of the date the subsidy will expire and also provide them with the amount of COBRA premiums they will be responsible for during the remainder of the COBRA period in order for COBRA coverage to continue.

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Lizbeth “Beth” West is a shareholder in the Labor and Employment Law Section and Disputes, Trials & Appeals Section at Weintraub Genshlea Chediak. Beth’s practice focuses on counseling employers in all areas of employment law, and defending employers in state and federal court, as well as before administrative agencies. She has extensive experience in defending wage and hour claims, and complex whistle-blowing and retaliation claims. She also provides training services on various employment issues, such as sexual harassment and violence in the workplace. If you have any questions about this Legal Alert or other employment law related questions, please feel free to contact Beth West at (916) 558-6082. For additional articles on employment law issues, please visit Weintraub’s law blog at www.thelelawblog.com.

Download: EEOC Notice (including GINA).PDF

The Genetic Information Nondiscrimination Act (GINA) takes effect November 21, 2009. Among other things, GINA requires that employers post a notice informing employees that the employer does not discriminate on the basis of genetic information.

The following EEOC notices can be used to meet the posting obligation:

1. “Equal Employment Opportunity is THE LAW” (EEOC 9/02 and OFCCP 8/08 – EEOC-P/E-1 (Revised 11/09). A copy of the notice is attached or you can obtain a copy at the EEOC’s website: www.eeoc.gov/posterform.html.

2. “EEO is the Law Poster Supplement” (Mandatory Supplement to EEOC 9/02 and OFCCP 8/08). A copy of the notice is attached or you can obtain a copy at the EEOC’s website: www.eeoc.gov/posterform.html.

In addition to posting the notices by November 21st, employers should also do the following:

1. Update their EEO and anti-discrimination policies to include genetic information as another protected class.

2. Make sure their interview and hiring documentation (e.g. applications, questionnaires, testing materials) do not request information about an applicant’s genetic medical history.

3. Review all policies and procedures that involve medical information (e.g. pre-hire screening, worker’s compensation, FMLA and other medical leaves of absence) to be sure they properly provide for the security and confidentiality of an applicant’s or employee’s (or employee’s family member’s) medical information including any genetic information.

4. Make sure all supervisory or management-level employees who have the responsibility of working with applicants or employees in connection with any of the policies referred to in number 3 immediately above, have been properly trained: a) not to improperly inquire about genetic medical history of an applicant or employee (or employee’s family member); and b) if they become aware of such information, to keep it confidential.

The employment lawyers at Weintraub Genshlea Chediak regularly draft effective employment policies and provide management training on a variety of employment law subjects. They would be happy to assist employers in the review and update of their policies to comply with GINA.

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Lizbeth “Beth” West is a shareholder in the Labor and Employment Law Section and Disputes, Trials & Appeals Section at Weintraub Genshlea Chediak. Beth’s practice focuses on counseling employers in all areas of employment law, and defending employers in state and federal court, as well as before administrative agencies. She has extensive experience in defending wage and hour claims, and complex whistle-blowing and retaliation claims. She also provides training services on various employment issues, such as sexual harassment and violence in the workplace. If you have any questions about this Legal Alert or other employment law related questions, please feel free to contact Beth West at (916) 558-6082. For additional articles on employment law issues, please visit Weintraub’s law blog at www.thelelawblog.com.

Download: Law Alert.pdf

On October 28, 2009, President Obama signed into law the National Defense Authorization Act for Fiscal Year 2010 (H.R. 2647). The new law is expansive with over 500 pages of text. Section 565 of the Act makes significant changes to the military leave entitlements under the Family and Medical Leave Act (FMLA) which went into effect earlier this year. Below is a summary of some of the changes made:

Qualifying Exigency Leave.
Currently, if an employee has a family member (e.g. spouse, son, daughter, step-son, or step-daughter) serving in the National Guard or Reserves (not active duty military) and such family member is called to active duty, the employee may be eligible for up to 12 weeks of “qualifying exigency” leave if time off is needed to address qualifying exigencies arising out of the fact that the family member has been called to active duty. Examples of qualifying exigencies for which an eligible employee may take leave to attend to include: military events and related activities, childcare and related activities, financial and legal activities, counseling, rest and recuperation (up to 5 days of leave to spend time with a military family member on short term leave from deployment), post-deployment activities for a period of 90 days following termination of military family members active duty status, and other events agreed upon by the employer and employee.

New Law: Under HR 2647, those employees with a family member in any regular component of the Armed Forces (not just the National Guard or Reserves) are eligible for Qualified Exigency leave. The new law also removes the requirement that this sort of leave can only be taken to support a contingency operation. Rather, it is available “because of any qualifying exigency arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on covered active duty (or has been notified of an impending call or order to covered activity duty) in the Armed Forces.”

Military Caregiver Leave.
Currently, if an employee has a covered family member in the armed services (e.g. spouse, son, daughter, step-son, step-daughter, parent, step-parent, or “next of kin” which is defined by the regulations as either the person designated by the service member or the nearest blood relative) who is undergoing medical treatment, recuperation, or therapy or is otherwise in outpatient status, or on the temporary disability list for a serious injury or illness incurred in the line of duty on active duty, the employee may be eligible for up to 26 weeks of military “service member care” leave if time off is needed to care for the covered family member.

New Law: Under HR 2647, the definition of “covered servicemember” does not just apply to active members of the Armed Forces (including National Guard and Reserves), but has been extended to veterans who were members of the Armed Forces (including the National Guard or Reserves) at any point in time within five (5) years preceding the date on which the veteran undergoes medical treatment, recuperation, or therapy. The new law also extends the definition of “serious health condition” for active duty covered servicemembers to include any injury or illness that “existed before the beginning of the member’s active duty and was aggravated by service in line of duty on active duty in the Armed Forces.” In the case of veteran covered servicemembers, a “serious health condition” includes any injury or illness that “was incurred by the member in the line of duty on active duty in the Armed Forces (or existed before the beginning of the member’s active duty and was aggravated by service in line of duty on active duty in the Armed Forces) and that manifested itself before or after the member became a veteran.”

What Should Employers Do?
1. Review and update FMLA policies and administration documents to be sure that they accurately reflect the new HR 2647 definitions and requirements.
2. Train those charged with administering FMLA leave requests and leaves with the new HR 2647 requirements.
3. Keep an eye out for new guidelines and publications from the Department of Labor on the new HR 2647 requirements.

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Lizbeth “Beth” West is a shareholder in the Labor and Employment Law Section and Disputes, Trials & Appeals Section at Weintraub Genshlea Chediak. Beth’s practice focuses on counseling employers in all areas of employment law, and defending employers in state and federal court, as well as before administrative agencies. She has extensive experience in defending wage and hour claims, and complex whistle-blowing and retaliation claims. She also provides training services on various employment issues, such as sexual harassment and violence in the workplace. If you have any questions about this Legal Alert or other employment law related questions, please feel free to contact Beth West at (916) 558-6082. For additional articles on employment law issues, please visit Weintraub’s law blog at www.thelelawblog.com.