What's coming up in employment law this April?
What’s coming up in employment law this April?
Continue reading for an overview of what legislative changes to expect and prepare for this coming April.
Continue Reading...Proposed Changes to FMLA Regulations Open for Public Comment
The Department of Labor published proposed changes to the current FMLA regulations Feb. 11, 2008. Employers, trade associations, unions and other interested parties may submit comments on the proposals until April 11, 2008.
Coinciding with the 15th anniversary of the FMLA’s enactment, the Department’s proposed regulations are intended to: respond to court decisions that had invalidated some of the FMLA regulations; provide additional clarity for workers and employers; and address areas where the Department had received repeated complaints about the existing regulations. The proposed changes were based in part on the Department’s own difficulties with administering the current regulations, as well as more than 15,000 comments received in response to the Department’s request for comments on the existing FMLA regulations in December 2006.
The Department’s proposed changes address a few of employers’ concerns with existing regulations, but fall short of proposing significant change in an area of concern to employers: the use of intermittent leave. Once the comment period has closed, the Department will assess the public responses and draft final revisions to the FMLA regulations. How closely the final regulations will resemble the current proposal remains to be seen, although it should be noted that the Department made widespread changes to its proposed regulations before issuing final regulations under the Fair Labor Standards Act in 2004—the Department’s last major regulatory change.
Continue Reading...The California Supreme Court Determines That Individuals Cannot Be Held Personally Liable for Retaliation
This post was written by Jean F. Kuei and Hardy Ray Murphy.
In a March 3, 2008 ruling, a sharply divided California Supreme Court determined that individuals (e.g., supervisors and coworkers) cannot be held personally liable for retaliation in employment under the California Fair Employment and Housing Act (“FEHA”). Scott Jones v. The Lodge at Torrey Pines Partnership, et al.1 This important ruling reverses the contrary conclusions of lower state courts and federal courts in California, and clarifies that only employers, not individuals, can be held liable for retaliation under California law.
The Torrey Pines decision flows from the court’s 10-year-old decision in Reno v. Baird,2 which held that individuals cannot be held personally liable for discrimination under the FEHA, but can be held liable for harassment. The Supreme Court reached that holding in Reno by focusing on the legislature’s different statutory treatment of harassment and discrimination claims. The court further reasoned that harassment claims typically concern conduct that is unnecessary to a supervisor’s job performance and that is engaged in solely for personal gratification, whereas discrimination claims usually involve conduct that arises out of the supervisor’s performance of necessary personnel management duties.3
Despite its broad pronouncement in Reno, the California Supreme Court had not specifically addressed individual liability for retaliation claims under the FEHA until now. Several lower and federal courts had concluded that, because the statutory language proscribing that conduct specifically includes “persons,”4 as does the language prohibiting harassment, individuals could be held liable for retaliation.5 But the California Supreme Court has now utilized its reasoning in Reno to conclude that supervisors cannot be held liable for retaliation under the FEHA. The 21-page, 4-3 decision spawned two dissenting opinions, including a 28-page dissent by Justice Carlos Moreno, joined in by the other two dissenters.
With this clarification of California law, it is hoped that supervisors can now discharge their duties and manage their subordinates without fear of being sued as individuals for discrimination or retaliation, and with the desired impact of increasing the overall effectiveness of supervisory and collaborative decisionmaking.
1 Scott Jones v. The Lodge at Torrey Pines Partnership (2008) 2008 WL 553670.
2 Reno v. Baird (1998) 18 Cal.4th 640.
3 Id. at 645-646.
4 Cal. Gov’t Code § 12940(h),
5 See e.g., Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1237, and Walrath v. Sprinkel (2002) 99 Cal.App.4th 1237, 1242.
Military Leave Amendments Require Modification of Employer Family Leave Policies and a New Posting
The National Defense Authorization Act of 2008, a $700 billion military spending bill, was recently signed into law by President Bush. Buried within the bill were dozens of modifications to the Family and Medical Leave Act of 1993 (“FMLA”) designed to create two new forms of FMLA leave. These two new forms of leave are intended to address the need for family members to provide care for wounded service members who are injured in the line of duty, and to provide leave from work to deal with non-medical obligations created by a family member’s call to active duty status.
- Service Member Medical Leave – A parent, spouse, child or the nearest blood relative of a soldier may take 26 weeks of leave to care for a soldier injured in the line of duty, while serving on active duty in the armed forces.
- Active Duty Exigency Leave – An employee make take 12 weeks of leave in the event that the employee’s spouse, child or parent is on active duty status or has received an order to active duty status, in support of a “contingency operation.”
Although these changes seem relatively straightforward, in practice, they are likely to prove much more complicated to administer.
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