BIA REPORT
Employment Law Update
State and federal developments of interest to New Hampshire employers
December 2002 issue:
By Andrea Johnstone and Anne Scheer*
As California Goes . . . So Goes?
On September 23rd, California became the first state in the nation to enact legislation mandating paid time-off for most workers to bond with a new baby, adopt a child, or care for a sick family member. This law provides individuals with six weeks of partially paid time-off over a twelve-month period. Employees are eligible under this law to receive up to fifty five percent of their weekly wages, up to an annually-adjusted maximum. The initial maximum weekly benefit is scheduled at $728 per week in 2004, increasing to $840 in 2005. This time-off is not paid for by employers, but rather is to be paid from the California State Disability Insurance Fund ("SDI"), to be funded by an increase in employee contributions to the Fund. The first employee contributions to the SDI Fund for family leave will be January 1, 2004, and the first claims will be paid after July 1, 2004, to allow the SDI Fund to build up reserves to pay claims. On average, it is anticipated that each employee will pay about $27 extra per year into the SDI Fund to support this program.
Unlike federal Family and Medical Leave Act ("FMLA") leave, which only applies to employees who work for employers with 50 or more employees, this law applies to all workers who contribute to the SDI Fund. However, it should be noted that this law does not provide leave time/job protection for an employee. Leave/job protection provided by separate California law and the FMLA still only provides leave/job protection for employees of employers with 50 or more employees.
California businesses vigorously oppose this law on the basis that although employers will not be paying employees for time-off, it will result in a host of indirect costs for businesses, such as overtime or the hiring of temporary employees to fill in for an absent worker. The law is seen as being an especially significant burden on small businesses. National studies report that more than 75 percent of workers who needed or were eligible for unpaid FMLA did not use it because they could not afford to go without a paycheck. It is expected that utilization of FMLA leave will greatly increase in California with this law.
Can You Discriminate Unknowingly?
Can your company be held liable even if you were unaware that an employee is in a protected class under the discrimination laws? Readers will like the conclusions reached this summer by two different federal appellate courts. The Eleventh Circuit Court of Appeals ruled that an employer did not discriminate against an Orthodox Jewish applicant because the manager who made the hiring decision was totally unaware of his religion despite the fact that the interviewer was. Similarly, since the decision to terminate an employee was made before the employee told the company she was pregnant, and early pregnancy is not noticeable, there could be no finding of discrimination reasoned the Sixth Circuit.
Additionally, the First Circuit, which covers New Hampshire, recently ruled that the mere fact that the decision-makers mentioned that the employee was in the protected age group during the meeting when the decision to fire him was made was not in and of itself evidence of age discrimination. The judges noted that the risk of litigation is often discussed when company officials meet to consider terminating someone.
In Brief
- The New Hampshire Supreme Court has agreed to hear Timkin Aeorospace's appeal from a judgment of over $500,000 awarded to a female employee for sexual harassment by a Sullivan County jury. Employment lawyers and other court observers are watching to see if the Court finds that the employer's response to her complaint was adequate as it did in reversing the Human Rights Commission in another case earlier this year.
- A federal appeals court has upheld a school district's policy of allowing a transgendered male teacher to use the ladies room rejecting the religious and hostile sexual environment discrimination claims of a female teacher who objected to using the same restroom despite the availability of other ones in the building.
- As the number of employers offering "domestic partner" insurance coverage grows in the public and private sectors, readers will be interested to know that a labor arbitrator has ruled that a collective bargaining agreement provision did not require an employer to offer such coverage to unmarried couples of the opposite sex since the intent was to make insurance available to same sex couples unable to marry.
Copyright 2002. This article originally appeared in BIA Report, December 2002.
* Anne Scheer is admitted in New Hampshire.
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