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California employment law: five predictions for 2011

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Arnold has ridden off into the sunset and there's a new...well, not really new, how about "reconditioned"...sherriff in Sacramento. Many bills that would have been harmful to California employers, particularly small businesses, previously fell victim to the veto pen. Now (to paraphrase Arnold), they'll be back - and employers better be ready. Here are some predictions for changes to employment laws and regulations in 2011.

  • Paid bereavement leave will become a required benefit. Two bills mandating bereavement leave passed the legislature in recent years but were vetoed. The most recent version would have required all employers to grant 3 days unpaid leave. Prediction: a bill will be signed into law that would require employers with 25 or more employees to grant 3 days of paid bereavement leave.
  • The Supreme Court will limit meal period liability - and the legislature will overturn the ruling. In the Brinker case, which is currently pending, the California Supreme Court will decide whether employers have an affirmative duty to make sure employees take their required meal period. Prediction: the Court will rule that employers are only required to provide employees with the opportunity to take their meal period, which will significantly limit the ability of plaintiff lawyers to collect in meal period litigation. Their allies in the legislature will immediately introduce legislation to effectively overturn Brinker, and it will eventually be signed into law.
  • California Family Rights Act will be extended to smaller employers. Currently, the CFRA mirrors the Federal Family Medical Leave Act (FMLA), including application to only those employers with 50 or more employees. Prediction: a bill to extend CFRA to employers with 25 or more employees will be signed into law.
  • Worker's compensation reform will be reversed. One of the signature accomplishments of the previous administration was to pass significant reforms in the worker's compensation system, providing some relief for employers and slowing the inexorable rise in premiums. Worker's compensation lawyers have made no secret of their desire to return to the old system, which gave them more leverage to extract larger settlements (and larger fees for themselves). Prediction: many of the reforms pushed through in recent years will be jettisoned, over the objections of the business community.
  • Use of credit checks in hiring will be effectively banned. This was another bill passed by the legislature and vetoed last year. Under the proposed legislation, an employer could only use a credit check when hiring for a managerial position that would have access to money, assets or trade secrets. Prediction: Similar legislation will be signed into law by Governor Brown.

2011 looks to be a great year for plaintiff-side employment attorneys. Business owners will need to adapt to the changing legal environment by devoting more time and resources on compliance.

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