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California Workplace Legislation for 2002

  • June 25, 2002

Employers Must Guard Confidentiality of Social Security Numbers

California Senate Bill 168 imposes requirements on all persons and nonpublic entities, including employers, to maintain the confidentiality of social security numbers. The bill, which takes effect for most employers on July 1, 2002, prohibits posting of social security numbers or requiring their use for access to products or services.

For many employers, the most significant provision of the new law is the one prohibiting the printing of an individual’s social security number on any mailed materials, unless required by state or federal law. An exception exists for “forms and applications” sent by mail, but the legislation fails to provide any guidance on which documents would qualify for the exception.

The bill also prohibits any requirement to transmit a social security number over the Internet unless the connection is secure or the social security number is encrypted. An individual may not be required to provide a social security number to access an Internet website unless a password or unique personal identification number or other authentication device is also required.

The law does not prevent the collection, use, or retention of social security numbers as required by state or federal law, or the use of social security numbers for internal verification or administrative purposes.

An entity may qualify for an exception to the law’s requirements, but only if it can demonstrate continuous past usage of social security numbers and it provides an annual information statement to individuals informing them of the right to prohibit the use of their social security numbers as outlined above. Any individual can then prohibit the use of the social security number by making a written request, which must be honored without charge.

Sick Leave Covers Care for Domestic Partners and Their Children

California employers providing sick leave now must allow employees time off to attend to the illness of a domestic partner or his or her children. Assembly Bill 25 provides that an employee may elect to use up to one half of the annual accrued sick leave to care for an ill domestic partner or child of a domestic partner. All employer conditions and restrictions applicable to personal employee use of sick leave also apply when an employee attends to the illness of a child, parent, spouse, domestic partner and child of a domestic partner.

Assembly Bill 25 also requires health insurers to offer domestic partner coverage to employers on the same terms and conditions as dependent coverage. While employers are not required by this law to provide domestic partner benefits, if an employer chooses to do so, the benefits must be on the same terms and conditions as other benefits offered to dependents.

English-Only Language Policies Are Prohibited

Assembly Bill 800 generally prohibits California employers from adopting or enforcing a policy that prohibits the use of any language in the workplace. An employer may maintain such a policy only if justified by business necessity and if employees are given a prescribed notice of the policy and consequences for its violation.

Religious Institutions Are Not Exempt From Harassment Claims

Assembly Bill 1475 extends the anti-harassment provisions of the California Fair Employment and Housing Act to employees of a religious corporation or association performing duties other than religious ones. Health care facilities operated by a religious corporation or association and that provide care to individuals who are not adherents of the religion also must comply with the anti-harassment provisions of the FEHA.

Employees Are Entitled to Reasonable Break Time for Lactation Needs

California employers must provide a reasonable amount of break time to lactating employees for the purpose of expressing breast milk. The break time would run concurrently, if possible, with any break time already provided. In the event a concurrent break period is not possible, the additional time for expressing milk shall be unpaid.

Employers must provide a room or location, other than a toilet stall, in close proximity to the employees’ work area. The room or other location may include the place where the employee normally works as long as that location meets the bill’s other requirements. Employers are exempt from the requirements if operations would be seriously disrupted by providing the break time. The bill authorizes the Labor Commissioner to issue citations and civil penalties for violations.

No Discrimination for Lawful Activities or Retaliation Against Applicants

California Assembly Bill 1015 prohibits employers from discriminating against employees and job applicants based on lawful conduct during nonworking hours away from the employer’s premises. The bill also prohibits employers from discriminating against job applicants because the applicant has filed a claim or participated in a proceeding before the Labor Commissioner. Existing law already prohibits an employer from discriminating against any employee for the same reasons. The law does not invalidate collective bargaining agreements and employment contracts that protect an employer against conduct in direct conflict with the employer’s essential interests where breach of the agreement would materially and substantially interfere with the employer’s operations. Nor does it invalidate collective bargaining agreements protecting a firefighter against diseases presumed to arise as a result of his or her employment by limiting the firefighter’s consumption of tobacco products.

Recent Amendments Affect Investigative Consumer Reports

Employers obtaining consumer reports on California applicants or employees should review their procedures and forms in light of recent amendments to the California fair credit reporting law. To obtain an investigative consumer report, California employers must disclose to the applicant or employee the name and address of the reporting agency, the nature and scope of the investigation, and a summary of the consumer’s rights to inspect the reporting agency’s files. Employers also must provide a copy of the report to the applicant or employee at the time of the initial meeting or interview, or within seven days of the report’s receipt, whichever is earlier.

Under California law, the definition of investigative consumer report broadly encompasses information on character, general reputation, personal characteristics, or mode of living obtained by any means (not just personal interviews as required under federal law). As a result, the disclosure requirements apply to almost every request for background information regarding a consumer. The investigative consumer report requirements do not apply, however, to certain factual information limited to a consumer’s credit record or manner of obtaining credit.

California law also imposes disclosure requirements on any person who collects, assembles, evaluates, compiles, reports, transmits, transfers or communicates information on a consumer’s character, general reputation, personal characteristics or mode of living for employment or other specified purpose. When acting in lieu of using the services of an investigative consumer reporting agency, the employer must disclose the information to the consumer at the time of the meeting or interview or within seven days of the date the employer obtains the information, whichever is earlier.

Penalties for noncompliance with any of the investigative consumer report requirements are severe, including a minimum award of $10,000 or the individual’s actual damages, whichever is greater, attorneys’ fees and costs, and punitive damages. Given the complexities of complying with federal and state requirements, Jackson Lewis has prepared a revised compliance guide addressing investigative credit report and consumer credit report requirements for California employers. The guide includes sample authorization, disclosure, pre-adverse action, and adverse action forms.

©2002 Jackson Lewis P.C. This material is provided for informational purposes only. It is not intended to constitute legal advice nor does it create a client-lawyer relationship between Jackson Lewis and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material. This material may be considered attorney advertising in some jurisdictions. Prior results do not guarantee a similar outcome.

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