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by Margaret J. Grover

The thicket of employment laws that govern California employers will become even thicker in 2009. This article will discuss some of the new laws and judicial changes that California employers should address.

On the Road Again: San Francisco Commuter Benefits
San Francisco employers with 20 or more employees must provide commuter benefits to employees who work at least 10 hours per workweek within San Francisco. To comply, employers must offer applicable employees at least one of the following transportation benefits:

• Pretax Transit Deduction: Under this program, the employer establishes a deduction program, under existing federal law, which allows employees to set aside up to $115 per month in pretax wages to purchase transit passes or vanpool rides.
• Employer-Paid Transit: For this benefit, the employer pays the employees’ fares on any of the Bay Area mass transit systems, including vanpools, up to the price of a monthly MUNI fast pass, currently $45.
• Employer-Provided Transit: Using this system, the employer provides a company-funded shuttle or other service to transport employees between work and home.

Failure to provide commuter benefits may result in employer fines. For the
first violation, the fine is set at $100.

The fine for the second violation in the same year is $200. The employer may be fined $500 for each additional violation in the same year.

Not Your Type: Texting While Driving
Drivers may no longer use an electronic wireless communications device to write, send or read a text-based communication while driving. A violation of this law carries a fine of $20 for a first offense and $50 for each subsequent offense.

Employers with any employees who drive in the course of business should adopt policies explaining the laws prohibiting texting while driving and requiring a hands-free device. The policies should also mandate that all employees comply with the laws while driving on company time or company business.

Employers may wish to consider a policy that is more restrictive than the law. For example, an employer may wish to prohibit cell phone use while driving or prohibit employees from driving while distracted. If an employer has not taken steps to prevent violations of the law, and an employee causes an accident while driving and talking, the employer could be responsible for all harm and may even face punitive damages.

Mistaken Identity: Appropriate Use of the I-9 Form
As immigration has become a political hot button, there have been greater
efforts to enforce laws. The Departments of State and Homeland Security adopted a new I-9 form and list of documents that may be accepted to verify an employee’s ability to work. This year, the Departments of State and Homeland Security started issuing “passport cards” that may be used as a “List A” document. While the passport card has only limited use in international travel, it is a valid passport that certifies the holder’s identity and United States citizenship.

Either excessive scrutiny of an I-9 and related documents or inadequate scrutiny of those same documents can cause trouble for an employer. Accepting improper documents can result in having undocumented workers, which can lead to substantial fines or difficult decisions when you receive a Social Security “no match” letter. Rejecting valid documents may result in a claim of discrimination.

Either way, the employer spends time and money. To make sure this does not happen to you, take a moment to review the new I-9 Form, which includes the list of acceptable documents. It is available online at www.uscis.gov/files/form/I-9.pdf. Make sure that you have discarded any old forms and know what each of the acceptable documents looks like.

Oops! I Did It Again: Reporting Workplace Injuries
Employers are obligated to file a complete report of every occupational injury or illness that results in lost time beyond the date of the injury or that requires medical treatment beyond first aid. The report is to be filed with the Division of Workers’ Compensation. In 2009, employers or their insurers will be required to submit forms electronically. The electronic forms have not yet been adopted.

Existing forms can be used until the Division of Labor Statistics adopts regulations implementing the electronic reporting procedure. For most employers, this requirement will be handled by the insurance carrier. Employers should check with their carriers to make sure the carrier is tracking any developments in the reporting requirements.

The Workers’ Compensation Appeals Board is also moving toward electronic filing and data management. Currently, anyone can search the WCAB’s Electronic Adjudication Management System and track the status of the WCAB’s active cases. Not all workers’ compensation cases will be listed with the WCAB, as the vast majority of workers’ compensation matters are resolved without litigation. However, an employer with a workers’ compensation claim in active litigation will be able to check the status of that case at any time.

We Can Work It Out: Arbitration of Employment Disputes
A new hurdle has been placed in the path of the employer desiring to resolve employment disputes through arbitration. A California court has determined that an employer cannot require an existing employee to accept an arbitration agreement as a condition of continued employment. Every year, creative lawyers representing employees find new ways to avoid arbitration agreements.

If you want to resolve employment-related disputes through binding arbitration: make sure that any offer letter explains that employees will be expected to resolve disputes through arbitration; have new employees sign a stand-alone arbitration agreement when they start work; give existing employees either a short window of time to opt out of arbitration or some additional consideration for accepting arbitration; and have your employment attorney look over your arbitration agreement to make sure there are no hidden flaws or loopholes.

No Free Lunch: Penalties for Meal and Rest Periods
The legal wrangling over when an employer must pay for a meal or rest period continues. Non-exempt employees are entitled to a 30-minute, unpaid meal period if they work more than 5 hours in a work day, and a second meal period if they work more than 11 hours. In almost all cases, the employee must be relieved of all duties during the meal period. Non-exempt employees are entitled to one paid 10-minute rest period for every work period of four hours or major fraction thereof. The rest period should be at or near the middle of the work period.

If an employer fails to provide a required meal period, the employee is entitled to an additional hour of pay. If the employer fails to provide a required rest period, the employee is also entitled to an additional hour of pay. Fortunately, if an employer does not provide all the rest periods required in a workday, the employee is entitled to only one additional hour of pay for that workday, not one additional hour of pay for each rest period that was not provided during that workday. Because these additional wages mount up quickly, there has been a significant amount of litigation regarding when they must be paid.

In 2008, one California appellate court sensibly held that employers only need to provide time for employees to take mandated meal and rest periods but not assure that employees actually take these breaks. The California Labor Commissioner issued a memo agreeing with that position, and employers breathed a bit more easily—until the California Supreme Court decided to review the appellate court decision.

This issue could remain undecided for another two years. During that time, employees will continue to file claims asserting that they are entitled to penalties for missed meal and rest periods. It appears that the labor commissioner will require only that employers provide meal and rest periods. The courts, however, may see the matter differently.

Every employer should make reasonable efforts to reduce the number of times breaks are missed. First, employee handbooks should specify that employees are required to take meal and break periods. Second, the employer can adopt a meal and rest break schedule that identifies when each non-exempt employee is to be relieved of duties and who is responsible for those duties during the break.

Advise all staff members that they are expected to take the meal and rest breaks in accordance with the schedule. All supervisors should be informed of the schedule and told not to give work assignments that interfere with the scheduled breaks. This will have the dual purpose of establishing the employer’s commitment to providing breaks and coordinating breaks so that all essential functions can be covered during the normal business day.

Third, the employer can track time carefully, requiring that employees sign out and back in for meal periods and certify on their time cards that they have taken rest breaks. Finally, the employer can build accountability into employee performance reviews. Management of the workload so as to avoid working through meal and rest periods should be an element of the performance review for both supervisors and staff.

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The opinions expressed in this article are those of the author, and do not necessarily reflect the viewpoint of the SFAA or the SF Apartment Magazine. The information contained in this article is general in nature. Consult the advice of an attorney for any specific problem. Margaret Grover is the lead partner in the employment group of Haight, Brown, & Bonesteel, LLP. She represents employers in a wide range of employment-related matters. Her counseling typically focuses on preventive employment practices, designed to assure compliance with applicable laws and regulations and to provide the best defensive posture in the event of litigation. She can be contacted at mgrover@hbblaw.com. Copyright © 2009 by Black Point Press. All rights reserved.