Mandatory Sexual Harassment Prevention Training Regulations and Expanded Leave Benefits for Military Families

Transcription

1 Mandatory Sexual Harassment Prevention Training Regulations and Expanded Leave Benefits for Military Families Association of Corporate Counsel Sacramento Chapter May 15, 2008 Jeff Frost, Associate Counsel Office of the General Counsel, Sutter Health Phone: , John T. Kennedy, Partner Nossaman Guthner Knox & Elliott LLP Phone: Copyright, 2008 Nossaman Guthner Knox & Elliott, LLP. All Rights Reserved The information contained herein does not constitute a legal opinion and should not be relied upon by the reader as legal advice or be regarded as a substitute for legal advice.

2 Required Sexual Harassment Prevention Training By January 1, 2006, an employer with 50 or more employees shall provide: A least two hours of classroom or other effective interactive training and education regarding sexual harassment to all supervisory employees in California who are employed as of January 1, 2005, and all new supervisory employees within six months of their assumption of a supervisory position. (Government Code section (a).) 1

3 Required Sexual Harassment Prevention Training (cont d) After January 1, 2006, an employer with 50 or more employees shall provide: to each supervisory employee in California sexual harassment prevention training and education once very two years. (Government Code section (a).) 2

4 Required Sexual Harassment Prevention Training (cont d) Does not establish liability if training is not provided. Does not insulate employer from liability. Violations entered with order requiring compliance. 3

5 Required Sexual Harassment Prevention Training (cont d) Minimum threshold (2 hours of training) Training shall include: information and practical guidance regarding federal and state laws regarding the prohibition of sexual harassment its prevention, correction, and remedies available to victims must include practical examples 4

6 Fair Employment & Housing Regulations Sexual Harassment Training and Education Regulations Effective August 17, 2007 (California Code of Regulations, title 2, sections , et seq.) 5

7 Fair Employment & Housing Regulations Employer Defined: Private Employee any person engaged in any business or enterprise in California, who employs 50 or more employees, contractors, or agents (direct or indirect) of the employer. The 50 employees do not have to work at the same location, nor do all have to work or reside in California Public Employer The state, counties, and any other political or civil subdivision of the state or cities, regardless of the number of employees 6

8 Fair Employment & Housing Regulations Supervisor Defined: Anyone who has the authority to hire, transfer, suspend, layoff, recall, promote, discharge, assign, reward, adjust grievances, or discipline other employees, or who has the responsibility to direct them. Note: Only supervisors located in California must be trained. Attending trainings for supervisors does not create an inference that an employee is a supervisor or that a contractor is an employee or supervisor. 7

9 Fair Employment & Housing Regulations Other Definitions: Employees: full time, part time, and temporary workers. Contractor: any person performing services pursuant to a contract as an independent contractor or agent of the employer. Having 50 or more employees: employing or engaging fifty or more employees or contractors on each working day for 20 consecutive weeks during the current year or proceeding calendar year. 8

10 Fair Employment & Housing Regulations Frequency of Training Once Every 2 Years! New Supervisors within 6 months after assuming supervising position New Business within 6 months of establishment every 2 years thereafter Expanding Business within 6 months of reaching 50 employees, and every 2 years thereafter. New Supervisor With Prior Training: Do not have to retrain if trained within 2 years Employer s burden of establishing prior training Then 2 year track based on prior training Must be given, required to read, and acknowledge receipt of new employer s policy within 6 months of hire 9

11 Fair Employment & Housing Regulations Tracking Individual Tracking v. Training Year 10

12 Fair Employment & Housing Regulations Duration At least 2 hours: need not be consecutive classroom or webinars no less than ½hour sessions. 11

13 Fair Employment & Housing Regulations Record Keeping Employer must keep documentation of training provided, including: name of supervisor trained date of training type of training name of training provider Records must be kept for at least 2 years (recommend 4 ½years.) 12

14 Fair Employment & Housing Regulations Acceptable Methods of Training: Classroom: in person, trainer instructor E Learning: computer based training with link or directions for contacting trainer available to answer questions and provide assistance within a reasonable time no later than 2 business days. Webinars: instruction based seminar taught by a trainer and transmitted over the internet or intranet in real time. must document and demonstrate that each supervisor not at the trainer s location actually attended the entire seminar and actively participated. must allow for questions and answers. 13

15 Fair Employment & Housing Regulations Qualified Trainer: Attorneys admitted at least 2 years to the bar of any state and whose practice includes employment law under FEHA and/or Title VII Human resources professionals or harassment prevention consultants Can be employees or independent contractors minimum of 2 years experience Professors or instructors in law schools, colleges or universities with post graduate degree or California teaching credential and either 20 instruction hours or 2 or more years of experience in law school, college or university teaching about employment law under the FEHA or Title VII 14

16 NEW MILITARY LEAVE LAWS 15

17 Qualification for Leave Under FMLA Employer has 50 or more employees Employee has been employed for at least 12 months Employee has worked at least 1,250 hours during past 12 months Employee works at site with at least 50 employees within 75 miles 16

18 New Federal Military Family Leave 17

19 FMLA Military Family Leave New Qualifying Reason Active Duty: Eligible employees are entitled to up to 12 weeks of leave because of any qualifying exigency arising out of the fact that the spouse, son, daughter, or parent of the employee is on active duty, or has been notified of an impending call to active duty, in support of a contingency operation. Secretary of Labor to issue regulations. In the interim, employers are encouraged, but not required, to provide this leave. (29 U.S.C. sections 2601, et. seq.) 18

20 FMLA Military Family Leave New Leave Entitlement: An eligible employee, who is the spouse, son, daughter, parent, or next of kin [nearest blood relative], of a covered servicemember is entitled to up to 26 weeks of leave in a single 12 month period to care for the covered servicemember. Effective upon enactment January 28, 2008! Can utilize 12 weeks of traditional FMLA caregiver leave with 14 weeks of this new leave for the 26 weeks of total leave in a single 12 month period. 19

21 FMLA Military Family Leave Employers may require: Requests for active duty leave be supported by a certification Requests for caregiver leave be supported by a health care provider certificate 20

22 FMLA Military Family Leave New military leaves may be taken intermittently or on a reduced leave schedule All other previous FMLA leave requirements apply, e.g.: reinstatement to previous position substitution of paid leave advanced notice where practicable 21

23 FMLA Military Family Leave Covered Service Member A member of the Armed Forces, including National Guard and Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness. Serious Injury or Illness defined as An injury or illness incurred in the line of duty or active duty., which would include combat and noncombat related injuries and illnesses. 22

24 FMLA Military Family Leave Department of Labor Proposed Rules: Active duty and contingency operation currently defined at 10 U.S.C. and sections 101(a)(13)(B) and (a)(13), respectively. Likely no further definition. Terms and phrases, such as: undergoing medical treatment, recuperation, or therapy next of kin nearest blood relative qualifying exigencies during a single 12 month period are currently under review and public comment period (Fed. Register, Vol. 73, No. 28, Monday, 2/11/08.) 23

25 FMLA Military Family Leave Further Unanswered Issues: Current FMLA definition of son or daughter those under 18 or 19 or older and incapable of self care. When does the single 12 month period begin? Is the 26 workweek leave entitlement a one time entitlement? Does the 26 workweek caregiver leave entitlement apply per covered service member? How should leave be designated? (Military care leave v. family care leave?) How to incorporate substitution of paid leave? Appropriate certification requirements. 24

26 FMLA Military Family Leave New California Military Leave 25

27 California Military Leave California employers with at least 25 employees must permit an employee, whose spouse is serving in the Armed Forces, National Guard, or Reserves, to take up to 10 days of unpaid leave when the military spouse is home during a qualified leave period. (Cal. Military Veterans Code section ) 26

28 California Military Leave "Qualified employee" spouse of a qualified member averages 20 or more hours per week provides employer with notice of intent to take leave within 2 business days of receiving official notification of spouse s leave from deployment submits written documentation certifying that military spouse will be on leave deployment during the period for which leave is requested (Cal. Military Veterans Code section ) 27

29 California Military Leave Qualified employer" at least 25 employees individual corporation company firm state, city, county municipal corporation, district, public authority or any other governmental subdivision (Cal. Military Veterans Code section ) 28

30 California Military Leave Qualified leave period" the period during which the military spouse is on leave from deployment during a period of military conflict (Cal. Military Veterans Code section ) 29

31 California Military Leave Period of military conflict either: a period of war declared by Congress, or a period of deployment for which a member of a reserve component is ordered to active duty. (Cal. Military Veterans Code section ) 30

32 California Military Leave Qualified member (i.e., military spouse) A person who is any of the following: a member of the Armed Forces deployed during a period of military conflict to an area designated as either: a combat theater, or a combat zone a member of the National Guard deployed during a military conflict a member of the Reserves deployed during a military conflict. (Cal. Military Veterans Code section ) 31

33 California Military Leave NO RETALIATION against qualified employee for requesting or taking this leave. 32

34 California Military Leave Shall not affect qualified employee s rights to any other employee benefit. Shall not affect or prevent qualified employee from taking other leave to which he or she is entitled. (Cal. Military Veterans Code section ) 33

35 Hypothetical Mary works full time for XYZ Company. Her husband is in the military, currently serving in Iraq. Mary learns that her husband will be home for a one week leave, and asks XYZ if she can have that time off. XYZ tells Mary that while they would like to give her the time, they cannot do so because it would be an extreme hardship at this busy time of year. Has XYZ violated Mary s rights? 34

36 California Military Spouse Leave Law ANSWER: Yes, if XYZ employs 25 or more people. Military and Veterans Code section , effective October 9, 2007, provides up to 10 days unpaid leave for employees whose spouse is in the Armed Forces, National Guard or Reserves, deployed during a military conflict, and their spouse is on leave from deployment. 35

37 All Could Change Pending California Legislation AB 2134 would conform California leave law to new federal military leave law and expand eligibility to include an employee who is the grandparent, grandchild, or sibling of the service member. 36

38 QUESTIONS? 37

39 Contact Information: John T. Kennedy, Partner Nossaman Guthner Knox & Elliott LLP Phone: