EMPLOYMENT LAW NEWSLETTER

CALIFORNIA SUPREME COURT GREENLIGHTS PUBLIC EMPLOYEE'S WHISTLEBLOWER SUIT

On February 26, 2008, the California Supreme Court, reversing a decision from the California Court of Appeal for the Third District, ruled the California Whistleblower Protection Act does not require state workers to exhaust remedies with the State Personnel Board before seeking damages in court. The decision in the matter of the State Board of Chiropractic Examiners (SBCE) v. Superior Court, Caroline M. Arbuckle, Real Party In Interest, stems from Carole Arbuckle reporting to her supervisor at the SBCE, that the SBCE chairperson had allowed her professional license to lapse, and asking several times whether she should issue the chairperson a citation. The complaint alleged as a result of Arbuckle's reporting, she experienced a "stressful work environment, including numerous indignities, disputes and acts of favoritism." Further, Arbuckle's duties were changed, she was transferred to a different unit, and her requests for a modified work schedule were denied. She complained to the State Personnel Board in July 2002, alleging whistleblower retaliation, but the board dismissed her complaint. Rather than appealing the board's decision, she sued the SBCE in Superior Court. The SBCE moved for summary judgment, arguing Arbuckle had not exhausted her administrative remedies, and the trial court denied that motion. The SBCE appealed that ruling to the appellate court, which held the trial court should have granted the defendant summary judgment. The Third District ruled the law required the employee to appeal the board's adverse decision to an administrative law judge, and if the board denied an ALJ hearing, the employee should have sought a writ of mandate from the courts to set aside the board decision. Thereafter, the Supreme Court granted Arbuckle's petition for review.

The California Supreme Court found the plain language of the California Whistleblower Protection Act requires only that state employees file a complaint with the personnel board before seeking damages in superior court. The Supreme Court held the state whistleblower law gives employees the right to seek a "completely separate damages action," eliminating the need for the exhaustion of administrative remedies: "[e]xhaustion of every possible state of administrative process is not particularly necessary where the civil action that the Legislature authorized is not one to review the administrative decision, but rather a completely independent remedy."

Please direct any questions or comments you have regarding this item to Basham Parker Attorney and Partner, Alden J. Parker. Mr. Parker has extensive experience representing public employers in matters of litigation, agency claims and hearing, and workplace training.

COMING SOON: THE EMPLOYEE FREE CHOICE ACT

On March 3, 2009, AFL-CIO Executive Council member and union leader James Williams said he expects the controversial Employee Free Choice Act to pass in the next four or five months. On March 2, 2009, Secretary of Labor Hilda Solis met with the Executive Council and Vice President Joe Biden conducted a closed-door address to AFL-CIO leaders on March 4, 2009.

The meetings between high-ranking government officials and union leaders illustrate a marked difference between the relationship organized labor enjoys with the Obama administration compared to the relationship with the Bush administration. Williams stated, the Council is trying to touch base with Capitol Hill and line up the necessary votes to get the EFCA though Congress. Although Democrats lack a filibuster-proof majority in the Senate, Williams suggested additional support from "friendly Republicans."

DOL PRELIMINARY GUIDANCE ON ECONOMIC STIMULUS PACKAGE COBRA SUBSIDY

The U.S. Department of Labor has issued preliminary direction on how the COBRA subsidy recently passed by Congress as part of the economic stimulus package should be handled by employers, noting additional guidance is still being prepared. COBRA programs give workers who lose their employer-sponsored health benefits the right to continue those benefits for a limited period of time; however, individuals who qualify can be required to pay the entire premium for coverage - up to 102% of the cost of the plan, an expense that can be too expensive for many workers who find themselves without a job. The stimulus bill passed by Congress last month, known as the American Recovery and Reinvestment Act of 2009 (ARRA), provided for a 65% government subsidy of the premiums paid for health care coverage under COBRA programs for up to nine months.

Those who can take advantage of the subsidy are employees who were eligible for COBRA continuation coverage between September 1, 2008, and December 31, 2009, and were involuntarily terminated during that period. Employees who can be covered under another health plan, such as one provided by their spouse's employer or Medicare, are not eligible for the subsidy.

The subsidy will apply to premiums paid for periods of COBRA coverage beginning on or after February 17, 2009. Those eligible for the subsidy will be treated as having paid the full premium and the 65% reduction will be reimbursable to the employer, insurer, or health plan as a credit against certain employment taxes.

Employees who were laid off between September 1, 2008, and February 16, 2009, who did not elect COBRA coverage when it was first offered, or who did elect it but are no longer enrolled, have a new 60-day post employer notice window to elect subsidized coverage.

Income standards have been clarified as well. If a worker's income exceeds $145,000 (or $290,000 for joint filers) in the year he or she receives a premium deduction, the subsidy reduction amount will have to be repaid in full. Taxpayers who make between $125,000 and $145,000 (or between $250,000 and $290,000 for joint filers) will have to repay a portion of the premium reduction.

The Labor Department is developing an appeals process for those who think they have been improperly denied eligibility for the COBRA premium reduction and, as earlier set forth, additional guidance on the COBRA subsidy program should be released soon.

Employers are reminded they are still required to notify affected employees of their right to elect COBRA coverage, and that the employee and his or her family have 60 days to make that decision before they lose rights to those benefits.

FAIR EMPLOYMENT AND HOUSING COMMISSION ISSUES COMPARISON TABLES

Continuing its efforts to navigate employers through the vast and complex workplace laws related to the employment of individuals with disabilities and related leave issues, the California Fair Employment and Housing Commission has developed two useful tables: the first comparing the Americans with Disabilities Act, the ADA Amendments Act of 2008, and related provisions of the Fair Employment and Housing (ADA/ADAAA/FEHA Table); and the second comparing the differences between the new Family and Medical Leave Act and the California Family Rights Act and pregnancy disability leave law (FMLA/CFRA/PDL Table).

EMPLOYMENT LAW ALERT UPDATE: GINA REGULATIONS

As Basham Parker first reported in its February 27, 2009, Employment Law Alert, the Equal Employment Opportunity Commission issued proposed regulations intended to implement the Genetic Information Nondiscrimination Act of 2008 (GINA). Those proposed rules have now been posted and are available for viewing on the EEOC website (GINA Regulations). Comments regarding this proposal must be received by the Commission on or before May 1, 2009. Basham Parker welcomes your comments and questions regarding these proposed regulations by email to clientservices@bashamparker.com.

BASHAM PARKER IN THE NEWS

Basham Parker is pleased to acknowledge Attorney and Partner, Alden J. Parker, for his recent contributions to the February 2009 edition of Comstock's Magazine. Parker was interviewed by Bill Romanelli regarding the Worker Adjustment and Retraining Notification Act (WARN), comparable California State WARN law (often referred to as "baby WARN), newly enacted federal and California State legislation (including Assembly Bill 28), and the status of specific California State case law (Brinker Restaurant Corp. v. Superior Court of San Diego County). The article is titled, "You've Been WARNed," and Parker's comments may be viewed online (Comstock's Magazine, "You've Been WARNed").

WELCOME NEW ATTORNEY RACHAEL JUNG

Basham Parker is pleased to announce Rachael Jung has joined the Firm as an Associate Attorney in its San Francisco Bay Area office. Rachael received her Bachlor of Arts degree in Psychology and Legal Studies from the University of California, Berkeley, and her Juris Doctor from Pepperdine University School of Law. She brings to Basham Parker additional legal experience focused on employment law matters. Please join us in welcoming Rachael to our Firm.

EMPLOYMENT LAW ALERT

EEOC ISSUES HIGHLY-ANTICIPATED GENETIC INFORMATION NONDISCRIMINATION ACT (GINA) EMPLOYMENT REGULATIONS

On Wednesday, the U.S. Equal Employment Opportunity Commission (EEOC) proposed rules to implement the employment provisions of the Genetic Information Nondiscrimination Act of 2008 (GINA). "The addition of genetic information discrimination to the EEOC's mandate is historic, and represents the first legislative expansion of the EEOC's jurisdiction since the Americans with Disabilities Act passed in 1990," said Acting EEOC Chairman Stuart J. Ishimaru.

GINA prohibits discrimination on the basis of genetic information in employment and health insurance. Specifically, the law prohibits: (1) unauthorized or required genetic testing of workers by employers and insurers; (2) employers from seeking out genetic information about employees; and, (3) employers from disclosing genetic information about employees and using genetic tests to discriminate against workers in hiring, firing, and other employment decisions. GINA's employment law provisions become effective November 21, 2009, while its health insurance benefits generally begin on May 21, 2009.

A 60-day public comment period for the new employment provisions commenced on February 25, 2009, and the EEOC has reported the notice of proposed rulemaking would be published in the Federal Register by Friday, February 27, 2009.

Included in the proposed regulations is a stipulation that employers will not be punished for neutral policies that have a disparate impact on employees with genetic diseases. Moreover, the final rules will clarify instances where employers "inadvertently acquire or disclose" genetic information and may be exempt from liability.

Regulations, rules, stipulations, and exemptions aside, GINA opens a brand new door to employee discrimination claims, and increased litigation is predicted by most. Prior to the November 21, 2009, effective date, employers should familiarize themselves with this new field of potential liability and carefully review and consider GINA's responsibilities and restrictions. At first glance, many employers will likely believe GINA will not influence their specific workplace and is very commonsense. Consider this: a manager who visits a sick employee in the hospital and learns the employee's malady has a genetic basis would not have obtained that information inadvertently.

The potential for inadvertent acquisition or disclosure is not implausible given GINA's definition of "genetic information," which includes "the manifestation of a disease or disorder in family members"; and, because GINA does not require a knowing acquisition or disclosure to support a claim. Employer advocates will certainly take advantage of the impending 60-day public comment period to attempt to further clarify many of these alarming concerns.

Basham Parker LLP will continue to provide updates related to the Genetic Information Nondiscrimination Act of 2008 as they develop. For additional information, please visit our website at http://rs6.net/tn.jsp?t=annspycab.0.0.rre7uhcab.0&ts=S0387&p=http%3A%2F%2Fwww.bashamparker.com%2F&id=preview.

The New Kid on the Block! Getting to Know GINA

On May 21, 2008, President Bush signed the Genetic Information Non-discrimination Act (GINA) into law. However, GINA's employment-related discrimination provisions do not take effect until November 2009. GINA was enacted, in part, to protect individuals from discrimination in employment on the basis of their genetic information. The law's anti-discrimination provisions generally impact employers already covered by Title VII. GINA prohibits employer use of an employee's or applicant's genetic information as a basis fordiscrimination in the application process, or with regard to terms and conditions of employment. With a few enumerated exceptions, employers are also prohibited from requesting or acquiring an employee's genetic information or that of an employee's family member. Like the Americans with Disabilities Act (ADA), GINA contains a provision requiring that employers keep any genetic information maintained on employees in a separate, confidential medical file. Individuals making complaints pursuant to GINA will have to file a charge with the U.S. EqualEmployment Opportunity Commission (EEOC) as a prerequisite to file suit. Compensatory and punitive damages, as well as attorney's fees, may be available to a plaintiff prevailing on a genetic discrimination based claim.

Employers should be prepared to revise their policies and practices to ensure compliance with GINA.