(These Articles are not current and should not be treated as such)

New Laws Coming!
As usual, there is a bunch of new laws taking effect January 1, 2002. Some of the more important employment-related laws:

• Unemployment benefits: significant increases each year, nearly doubling by 2005. Consequence for you: all the more important to contest what you perceive are erroneous decisions (benefit awards) for employees discharged “for cause”, to avoid unwarranted charges to your reserve account, and an increase in your premiums.
• Accommodations for nursing mothers: all employers must provide a reasonable amount of break time to permit a nursing mother to express or pump breast milk for her infant child. There are a variety of conditions and obligations associated with this, as well as significant ambiguity about various issues, that will need to be resolved by the Legislature or the Labor Commission. Consequence for you: for many small businesses, this situation may never be encountered. If it is, feel free to call my office for further advice and guidance.
• Child Support Withholding: if you fail to comply with a wage garnishment order for child support, the authorities can get a court order for an electronic transfer out of your account, and under certain circumstances, can charge you with a 50% penalty. Consequence for you: don’t even think about not complying with such an order! There may be “thought police” who catch you out.
• Health care plans: must now provide coverage for FDA-approved AIDS vaccines recommended by USPHS. Consequence for you: expect health insurance premiums to increase, and consider what portion you will absorb, and what portion you will ask your employees to cover.
• Workplace privacy: businesses are barred from printing Social Security Numbers on ID cards and mailed documents, plus some other restrictions. Consequence for you: probably not much…but I wonder how this will work for certain ID cards, such as my Blue Shield health-plan ID card and my FAA Pilot’s License, both of which use my Social Security number for identification purposes. And one that makes more sense…
• For the third year in a row, the Governor vetoed a bill that would have prohibited secret employer monitoring of employee e-mail or other computer records. Procedures would have been established to issue policies and get all affected employees to sign an acknowledgement of receipt. In his veto message, the governor said employees should already know that their email may be monitored! What a welcome breath of fresh air…we need more of them!

By the way, in Employee Manuals I write for my clients, that’s already covered: employees are advised to have no expectation of privacy in their emails and computer records and need to acknowledge receipt of the Employee Manual. It’s a worthwhile policy to have in place, with or without a specific law that covers it.

English Only?
Not according to a new law just signed by Governor Gray Davis. The new law makes it an unlawful employment practice for an employer to prohibit the use of any language in the workplace unless justified by “business necessity’. The bill would also require employers who adopt such a policy to notify workers of the language restriction and the consequences of violating it.

What’s an adequate “business necessity”? Here’s what the law says: “For the purposes of this section, “business necessity” means an overriding legitimate business purpose such that the language restriction is necessary to the safe and efficient operation of the business, that the language restriction effectively fulfills the business purpose it is supposed to serve, and there is no alternative practice to the language restriction that would accomplish the business purpose equally well with a lesser discriminatory impact.”

What’s that? You say you don’t know what “there is no alternative” is supposed to mean? Well, neither did the legislators who wrote this, nor the governor who signed it. It’s typical legislative phraseology, designed to allow lawyers to sue you later, if you make a mistake, even an innocent one.

The bottom line is this: if you have a bona fide reason for imposing a language restriction (most likely: safety requirements), it’s going to be challenging to come up with an explicit policy that conforms with the law’s requirements. It can and will be done…it will just take a fair amount of “policy development” and wordsmithing.

“Nanny Tax” Revisited
This isn’t directly a “business issue”, but I know that many of my clients utilize the services of gardeners, housekeepers and others at home. So, you’ll probably remember the “nanny tax”.

People who pay nannies, maids, gardeners and other household employees $1,300 or more this year are also supposed to pay Social Security and Medicare taxes, and also file Schedule H with their personal tax returns, not to mention tax withholding and other employment taxes. If you can’t understand why your gardener and your housekeeper, each working only a few hours a week for you, are considered “employees” …well, you’re not alone!

The WSJ recently reported that very few employers (meaning: “ordinary people”) seem to care what the law says. The number of such returns filed last year was down 5% from the year earlier, and Schedule H was filed with only 0.25% of all individual returns.

One reason may be (the Journal speculates) that many people still contend their household workers are “independent contractors”, not employees. There are other reasons as well. I’ve even heard of household workers who refuse to work for anyone who insists on paying them by check, and/or making deductions for payroll taxes.

Are lots of people breaking the law (or, at least, breaking the IRS’s regulatory interpretation of the law)? Sure sounds like it to me. It also seems as though the government (and our elected representatives) are unwilling to understand that a law that is “broken” far more than it is obeyed is a law that is palpably unpopular with the people they are supposed to represent.

Isn’t there a folk song that includes the lyrics: “When will they ever learn? When will they ever learn?”

The information presented is not intended to be, and does not constitute, “legal advice.” Because each situation varies, and only brief summary information is provided here, you should not use this information as a basis for action unless you have independently verified with your own counsel that it applies to your particular situation.