New California Employment Regulations: Is the “Reprieve” Over?
By John H. Douglas
After Democrat Gray Davis was recalled in 2003 and replaced by Republican Arnold Schwarzenegger, California employers enjoyed an eight-year “reprieve” (relatively speaking) from new state-level employment regulation. Gov. Schwarzenegger frequently wielded his veto pen. With the election of Jerry Brown as governor and both executive and legislative branches returned to Democratic hands, however, California employers should brace themselves in the coming year or two for a flurry of new laws as long-unaddressed demands by labor and other progressives are answered.
In the meantime, on October 8, 2010, new regulations of the California Division of Workers’ Compensation (http://www.dir.ca.gov/dwc/dwc_home_page.htm) took effect. They require California employers, among other things, to: (1) post a new “Notice to Employees — Injuries Caused by Work” poster (also known as a DWC 7 poster); (2) provide an updated “Your Rights to Workers’ Compensation Benefits” pamphlet to new workers”; and (3) use an updated Workers’ Compensation Claim Form (DWC 1 form) and “Notice of Potential Eligibility” form that contain new information regarding the existence and use of so-called “medical provider networkers” (MPNs). There also have been a variety of changes to the regulations governing notifications that must be provided to employees regarding the institution of — or changes to — MPNs. Careful attention to these new regulations is important, as failure to comply with them can result in fines of up to $7,000. More detailed information about MPNs and the new regulations is available on the Division of Workers’ Compensation Web site at http://tinyurl.com/28drokv.
One bill that Gov. Schwarzenegger did not veto this year was SB 657, the California Transparency in Supply Chains Act. Effective January 1, 2012, this new bill will require every retailer and manufacturer doing business in California with more than $100 million in gross receipts to disclose its efforts to eradicate slavery and human trafficking from its supply chain. The disclosure will have to be posted on the company’s Web site, if it maintains one, or if it does not, provided to consumers in writing upon request. The disclosure will have to include, among other things, information describing the extent to which the company: (1) engages in verification of supply chains to address human trafficking and slavery and uses third parties in that process; (2) conducts independent, unannounced audits of suppliers to ensure compliance with company standards on trafficking and slavery; (3) requires direct suppliers to certify that materials incorporated in their products comply with the laws regarding slavery and human trafficking of the country or countries in which they do business; (4) maintains internal accountability standards for employees and contractors failing to meet company standards on slavery and trafficking; and (5) provides both managerial and non-managerial employees training on mitigating risks of slavery and trafficking in supply chains.
California employers will have some lead time to comply with this new law, as it does not go into effect until 2012. With the number and popularity of false advertising and “unfair competition” class actions increasing year after year, California employers should take the time and effort to make sure they comply in a timely fashion.
EEOC Issues Final Regulations Interpreting GINA
By Carmen N. Couden
On November 8, 2010, the EEOC issued final regulations interpreting the federal Genetic Information Non-Discrimination Act (GINA), which prohibits employers from requesting, requiring, or purchasing an individual’s genetic information or using genetic information to make employment decisions. The new regulations (http://tinyurl.com/24x423u), which will take effect in approximately 60 days, clarify several of GINA’s definitions and provide additional information regarding GINA’s six exceptions to employer liability for obtaining genetic information. Among other things, the EEOC’s final regulations:
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State that when an employer asks its company doctor to complete a medical exam of an employee or applicant, the employer must explicitly instruct the doctor not to ask for genetic information, including information about the individual’s family history
- Set forth model language to be used by employers when requesting medical information from a third-party medical provider that warns the health care provider not to include data regarding genetic information with the response (This one is very important — make sure to update your forms or ask counsel about updating them)
- Require that the warning to health care providers regarding genetic information be included on medical certification forms used by employees to request leave for a serious health condition under both federal and state family and medical leave act laws
- Provide that employers are not liable for acquisition of genetic information that is inadvertent (e.g., overhearing employees’ conversations or receiving genetic information from a medical provider after warning the provider not to include genetic information with the response)
- Require the employer to keep protected genetic information that it does receive in a confidential file separate from the employee’s personnel file
- Allow employers to offer limited financial incentives for certain disease-management programs
The EEOC’s final regulations interpreting GINA differ in many respects from the rule originally proposed by the EEOC in March 2009. Thus, employers would do well to familiarize themselves with the final regulations now before they take effect in January 2011.