California Apparel News

The beginning of the year brings its usual flurry of new state and federal laws that govern the workplace and apparel manufacturing.

California’s lawmakers were a little light this year on passing legislation that affects the workplace. But a number of court cases were heard in 2010 that will change how employers deal with their workers.

Also, the Consumer Product Safety Commission was busy revising rules on apparel imports and domestically produced clothing for adults that will need to be certified for flammability safety. “It merely drops the stay on certification for adult-wearing apparel,” said David Evan, an attorney with Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt in New York.Here is a summary of the employment laws, court cases and federal regulations that will influence the apparel and textile industries in 2011.

Meal-break exemptions

Under Assembly Bill 569, several kinds of employees are now exempt from the mandatory meal-break exemption. These are commercial drivers, certain security officers and construction workers. They are exempt if they are covered by a valid collective-bargaining agreement containing specified terms, including meal-period provisions.

Leaves of absence

The state of California provides a number of reasons for employees to be able to take leaves of absence. They range from caring for a sick family member to time for military training and service. This year, the state Legislature, under Senate Bill 1304, added a paid leave for bone marrow or organ donors for employees working at companies with 15 or more workers.

Organ donors must be provided a 30-day (workdays) leave of absence in any one-year period, and bone marrow donors must be provided a leave of absence of up to five workdays in any one-year period. Leave for the purpose of donating bone marrow or an organ may run concurrently with provisions of the Family and Medical Leave Act (FMLA) if the employer is a covered employer and the employee is eligible for FMLA.

An employer may require that the employee take up to five days of earned but unused sick or vacation leave for a bone marrow donation and up to two weeks of earned but unused sick or vacation leave for an organ donation unless doing so would violate the provisions of any applicable collective-bargaining agreement.

In addition, the employer must maintain and pay for the workers’ group health plan coverage for the full duration of the leave.

Upon conclusion of the leave, the employee must be reinstated to his or her original position or to a position with equivalent seniority status, employee benefits, pay, and other terms and conditions of employment.

Wage-claim appeal

An employer filing an unpaid wage-claim appeal must now post a bond with the court in the amount of the judgment that could come from an administrative hearing. This law, Assembly Bill 2772, also mandates that employers provide written notification to the other parties and the state Labor Commissioner that the bond has been posted.

It’s in the genes

In November, the U.S. Equal Employment Opportunity Commission issued final regulations in the Genetic Information Nondiscrimination Act of 2009. The final regulations go into effect on Jan. 10. GINA, which applies to private and public employers with 15 or more employees, prohibits employers from using genetic information in making decisions about terms, conditions and privileges of employment. The act also specifically prohibits employers from requesting, requiring, purchasing or disclosing employees’ genetic information.

Minimum wage

The California minimum wage remains $8 an hour, but the San Francisco minimum wage goes from $9.79 to $9.92 an hour. The San Francisco ordinance requires that a poster be displayed in the workplace in English, Spanish, Chinese and any other language spoken by 5 percent of the employees. The federal minimum wage remains at $7.25 an hour.

Death benefits

Assembly Bill 1696 permits continuation of death benefits until the youngest child reaches 19 years of age if:bull;The child is still attending high school.

bull; The child is receiving the death benefits as a child of an active member of a police or fire department of a public or municipal entity or political subdivision killed in the performance of duty.

bull; The benefit continuation does not apply to a child of an employee whose principal duties are clerical or otherwise do not fall within the scope of active law enforcement or active firefighting services.

San Francisco Health Care Security Ordinance

A worker who is a manager, supervisor or confidential employee who earns more than $81,450 a year or $39.16 an hour is exempt from coverage under the San Francisco Health Care Security Ordinance.

Court decisions affecting the workplace

Stray remarks as evidence of bias

In a long-awaited ruling, the California Supreme Court issued its decision in Reid v. Google, involving allegations that stray remarks by co-workers of a discriminatory nature supported an age-discrimination claim.

Courts have traditionally held that such remarks made by co-workers who are not involved in adverse employment decisions cannot support discrimination complaints. Courts brand them as merely stray remarks that are not evidence of discrimination.

However, the court held that the “stray remarks” doctrine is “unnecessary” in California court cases and that its “categorical exclusion” of evidence may lead to “unfair results.” As a consequence, the court ruled that the case could go forward and evidence of stray remarks be admitted into evidence. No matter what happens with the case, it should alert employers that to protect themselves from liability, they should make reasonable efforts to eliminate politically incorrect teasing and discriminatory references in the workplace—or at least not encourage or condone off-hand remarks of a discriminatory nature.

Text messages

In City of Ontario v. Quon, the U.S. Supreme Court upheld the legality of an audit of a police officer’s text messages in his department-issued pager. The court ruled that the search was reasonable because it was motivated by a legitimate work-related purpose and was not excessive in scope.

The court emphasized the importance of well-crafted employer privacy policies, noting that “employer policies concerning communications will, of course, shape the reasonable expectations of their employees, especially to the extent that such policies are clearly communicated.”

Exempt vs. non-exempt

In Taylor v. United Parcel Services, a California Court of Appeal ruled that a UPS supervisor was, indeed, accurately ranked as a supervisor in his job. The court explained that the supervisor qualified under the executive exemption if he (1) managed “the enterprise or a customarily recognized department or subdivision thereof”; (2) regularly supervised two or more employees; (3) had the power to hire or fire or had “particular weight” in decisions to hire, fire, promote or demote employees; (4) regularly used discretion and independent judgment; (5) primarily performed executive exemption duties; and (6) had a salary at least twice the California minimum wage for full-time employment.

The supervisor argued that the executive exemption’s fourth element was absent because his management duties were “dictated by stringent UPS procedures and methods” precluding him from regularly using discretion and independent judgment. The court rejected this contention, ruling that the protocols did not reduce his duties to “routine tasks.”

Because hundreds of misclassification class actions have been filed against California employers, this case emphasizes the need for employers to carefully determine proper classifications on a position-by-position basis, analyzing each individual employee’s job duties.

Flammability regulations

The Consumer Product Safety Commission has had a stringent set of rules governing children’s apparel and testing it for flammability. Starting Jan. 26, the CPSC wants to make sure that adult apparel doesn’t go up in flames.

While all imported and domestically produced children’s apparel must be tested for flammability by an accredited third-party lab, adult apparel must now have a certification available if requested by the CPSC. The importer or domestic manufacturer must furnish a copy of the certification to each distributor and retailer of the product. Testing on adult apparel doesn’t have to be done by an accredited third-party lab. It can be tested in-house or through a testing program.