A number of bills which may impact California employers and employees were signed into law by Governor Arnold Schwarzenegger. These new laws include:

SB 1304 (DeSaulnier): A new paid leave requirement for California employers with 15 or more employees will go into effect on January 1, 2011. Codified by Labor Code section 1508 et seq., employees who meet the eligibility requirements will be entitled to up to 30 days’ paid leave in any one-year period for organ donation and up to five days’ paid leave for bone marrow donation. To qualify for this new leave, an employee must provide the employer with written verification of his or her status as an organ or bone marrow donor and the medical necessity for the donation. Leaves may be taken in one or more periods, and during any period of leave, employers must maintain and pay for coverage under a group health plan. Leave taken cannot be considered a break in the employee’s continuous service for the purpose of salary adjustments, sick and vacation pay accrual, annual leave or seniority. However, unless otherwise provided by a collective bargaining agreement, an employer may require employees to use up to five days of accrued sick or vacation time for bone marrow donation leave and up to two weeks of accrued sick or vacation time for organ donation leave. Upon return from such leave, an employee must be restored to the same position or to a position with equivalent status, pay and benefits.

Importantly, this leave does not run concurrently with any leave taken pursuant to the Family and Medical Leave Act (“FMLA”) or the California Family Rights Act (“CFRA”), which means that employees will be entitled to this leave in addition to any FMLA or CFRA leave. The law also protects employees from retaliation for exercising their leave rights and prohibits employers from interfering with their efforts to take such leave.

AB 569 (Emerson): This new law, codified by Labor Code section 512, will take effect January 1, 2011. It exempts construction employees, security services industry officers, commercial truck drivers, and employees of electrical and gas corporations and local publicly owned electric utilities from California’s meal period requirements if the employees are covered by a valid collective bargaining agreement containing meal period provisions. The new law contains more specific definitions of the occupations exempted from meal period requirements.

AB 2364 (Nava): This new law, which will be codified by various sections of the Unemployment Insurance Code, slightly broadens eligibility for unemployment compensation by providing that employees who leave employment to protect their family from domestic violence are eligible for unemployment benefits. This law will become effective on January 1, 2011.

Summary provided by Worklaw Network firm Pettit Kohn Ingrassia & Lutz (www.pettitkohn.com).

In a continued effort to crack down on 1099 misclassification schemes, the PA legislature has passed a bill that defines the issue. You can see the bills history at http://www.legis.state.pa.us/cfdocs/billinfo/billinfo.cfm?syear=2009&sind=0&body=H&type=B&bn=0400 below is the most important language in that bill. MY highlights in bold.

(a) General rule.–For purposes of workers’ compensation, unemployment compensation and improper classification of employees provided herein, an individual who performs services in the construction industry for remuneration is an independent contractor only if:

(1) The individual has a written contract to perform such services.

(2) The individual is free from control or direction over performance of such services both under the contract of service and in fact.

(3) As to such services, the individual is customarily engaged in an independently established trade, occupation, profession or business.

(b) Criteria.–An individual is customarily engaged in an independently established trade, occupation, profession or business with respect to services the individual performs in the commercial or residential building construction industry only if:

(1) The individual possesses the essential tools, equipment and other assets necessary to perform the services independent of the person for whom the services are performed.

(2) The individual’s arrangement with the person for whom the services are performed is such that the individual shall realize a profit or suffer a loss as a result of performing the services.

(3) The individual performs the services through a business in which the individual has a proprietary interest.

(4) The individual maintains a business location that is separate from the location of the person for whom the services are being performed.

(5) The individual:

(i) previously performed the same or similar services for another person in accordance with paragraphs

(1), (2), (3) and (4) and while free from direction or control over performance of the services, both under the contract of service and in fact; or

(ii) holds himself out to other persons as available and able, and in fact is available and able, to perform the same or similar services in accordance with paragraphs (1), (2), (3) and (4) while free from direction or control over performance of the services.

(6) The individual maintains liability insurance during the term of this contract of at least $50,000.

(c) Factors not to be considered.–The failure to withhold Federal or State income taxes or pay unemployment compensation contributions or workers’ compensation premiums with respect to an individual’s remuneration shall not be considered in determining whether the individual is an independent contractor for purposes of the Workers’ Compensation Act or the Unemployment Compensation Law.

(d) Workers’ compensation.–

(1) An individual who is an independent contractor as determined under section 3 is not an employee for purposes of the Workers’ Compensation Act. For purposes of this section, each employment relationship shall be considered separately.

Towards the end of my active litigation career I can remember a woman coming into my office that wanted to sue the law firm she had worked at for wrongful termination. Long story short: she worked for a named litigation partner at a local firm for 15 years. Feeling a bit unappreciated, she put her word out to the grapevine that she was hoping for greener pasture. Apparently,  at the same time, a partner at another firm lost his legal secretary with little notice. He was desperate for a replacement and put his word out to the grapevine and therein they met. A few days later they met for lunch. She is a pleasant woman and obviously knew what she was doing given her work history. So he hired her on the spot.

Then the “problems” began. Apparently she wasn’t as quick as his previous legal secretary. Within 3 months she was let go for her non-productivity. That’s when she walked into my office.

So here was a woman over 40, raising some kids on her own, steady job for 15 years, promises of green pasture and then out on the streets 3 months later without so much as a “sorry.” How would you feel if that was you…or your sister? How do think 12 jurors might feel about law firms who treat people this way?

The “old” Don would have loved to mess with this firm. They weren’t especially nice to me on a case I had litigated against them a few years prior. If I could have somehow squeezed past all the motions to dismiss, etc. and taken it to a jury it would be game over. However, this being the kinder and gentler me, and someone who has learned that litigation is a poor substitute for the taking of personal responsibility and moving on, I asked a different set of questions. Like “What was your responsibility in all of this?” “Were you crystal clear about what it took to be a success in this position or did you simply have your fingers crossed?” (As Mary Kay so famously stated “Most folks spend more time planning their vacations than their careers.”)

What does a litigation secretary do 80% of the day? Type. Did the firm or partner have a typing test requirement? Of course not. So what do you think the typing standard was for that job to be a success in it? The client was astute enough to say “My guess is the speed met by the previous legal secretary.” And what was that? Who knew? When I asked what her typing speed she said approximately 80 words per minute in a test she took herself some years ago. (Just an OK typing speed for a high-end legal secretary. I never hired under 100 wpm.) When I tracked down the previous legal secretary she said at least 100 wpm.  So there you have it. This legal secretary was a failure the first day on the job and nobody knew about it!

How many employees, not just legal secretaries, are failures on their first day of hire? Fact is, there is no substitute for testing on all aspects of employee performance. For example, you can do an online typing test of your existing secretaries to generate a hiring benchmark and to see who may need some additional training. Here’s an example of one such test: http://www.previsor.com/pdf/FactSheets/Fact_Sheet_Typing.PDF. While you are it, have the attorneys and legal secretaries create a substantive knowledge test too. If it’s a litigation secretary test their procedural knowledge. If it is a secretary to an estate planning attorney you can test for the relevant knowledge there too. I bet half of all applicants and half of all employees will do better than the other half.

There you have it. A simple formula: Test for it if it’s important to you. The failure to do so will guarantee failed employees.