Part 4:  The Legislative And Executive Bodies

As we continue our journey through some of the more noteworthy employment developments in 2009, we note that Congress and the California legislature each had its hands in the works, as did the Executive branch who, judging by the 750 pages of regulations it propounded in interpreting the FMLA, clearly needs more to do.  While there were scores of new laws and regulations touching upon the minutiae of our daily worklife existence, a few stand out.

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Now what has the California Supreme Court done to employment law here in the Golden State?

In Roby v. McKesson (S149752), the latest masterpiece from the state’s top court, it looks as if both employees and employers can claim a modicum of victory. 

The employees will find it easier to assert and prove harassment claims against individual supervisors, which will make it easier to (a) defeat removal to federal court based on diversity jurisdiction; and (b) defeat summary judgment of harassment claims by individual supervisor defendants.

For the employers?  The Court may be signaling further disenchantment with high punitive damages, particularly in cases involving high non-economic (emotional distress) damages where there is little evidence that upper management knew about the bad conduct.

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From time to time, our firm sends out advisories to our clients regarding labor and employment issues that are particularly topical.  Today's introduction to the new proposed disability regulations is an example.  In the advisory that follows, Rory Diamond summarizes the EEOC's proposed new definition of "disability" and some of its expected consequences.  Employers everywhere should keep abreast of these important changes.

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On January 1, 2009, the Americans with Disabilities Act Amendments Act of 2008 (ADAAA) went into effect, greatly expanding the definition of “disability” in the Americans with Disabilities Act (ADA).  The ADAAA overrides the holdings in several U.S. Supreme Court decisions and some EEOC regulations that Congress felt construed the definition of “disability” too narrowly.

On September 23, 2009, the EEOC published in the Federal Register a long-awaited Notice of Proposed Rulemaking (NPR) seeking to implement the ADAAA.  [See “Regulations to Implement the Equal Employment Provisions of the Americans with Disabilities Act,” 74 Fed. Reg. 48431, 48440 (Sept. 23, 2009) (to be codified at 29 C.F.R. pt. 1630).]  The new proposed definition of “disability” incorporates many medical impairments.  The changes apply to both the ADA and the Rehabilitation Act (covering Federal employees).

Outlined below is a guide to the more significant changes we can expect should the NPR become regulation.

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Just how "unique" is California employment law?

We asked our panel of experts to come up with their TOP 10 list of uniquely California employment laws, rules, and regulations.  Here were the first ten to pop to mind:

1) VACATION PAY– Unlike virtually every other state, California does not allow employers to have “use it or lose it” vacation policies.  Instead, California requires employers to either cash out their employees’ accrued vacation at the end of the year or allow them to carry it over up to a “reasonable cap” on accrual.

^{[thanks to Alan Light for the photo
of the Top 10 King!]}

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