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State Labor Laws, 2003

responsible for destroying or disposing of them. The articles or material must not en- ter the mainstream of commerce and must not be offered for sale. The division is to, by certified mail, give notice of the confis- cation and the procedure for appealing the confiscation to the person whose name and address are affixed to the article or material. The notice will state that failure to file a written notice of appeal with the labor com- missioner within 15 days after service of the notice of confiscation will result in the destruction or disposition of the confiscated article or material. To contest the confisca- tion, a person must, within 15 days of ser- vice of the notice, file a written notice of appeal with the labor commissioner. A hear- ing on the appeal will be held within 30 days. Based on the evidence presented at the hearing, the labor commissioner may affirm, modify, or dismiss the confiscation, and may order the return of none, some, or all of the confiscated articles or material.

Equal employment opportunity. The prohi- bition on employment discrimination on the basis of sex was expanded by including gen- der in the definition of sex. For this purpose “gender” means an employee or applicant’s actual sex or the employer’s perception of his or her sex, and includes the employer’s perception of the employee or applicant’s identity, appearance, or behavior, whether or not that identity, appearance, or behavior is different from that traditionally associated with his or her sex at birth. Employers may require employees to comply with reason- able workplace appearance, grooming, and dress standards consistent with State and Federal law, provided that employees are al- lowed to appear or dress consistently with their gender identity.

Language in the Fair Employment and Housing Act was clarified to ensure that un- der State law employers may potentially be liable for sexual harassment committed against their workers by clients, customers and other third parties if they knew or should have known of the harassment, and failed to take immediate and appropriate corrective action to stop the harassment. In reviewing cases involving the acts of non-employees, the extent of the employer’s control and any other legal responsibility that the employer may have with respect to the conduct of those non-employees will be considered. This change is in response to a 2002 court of appeal decision (Salazar v. Diversified Paratransit, Inc.), which held that the legisla- ture did not intend the State’s Fair Employ- ment and Housing Act to hold employers potentially responsible for protecting their

workers from sexual harassment if such ha- rassment was committed by outside parties in the workplace.

No State agency may enter into any con- tract for the acquisition of goods or services in the amount of $100,000 or more with a contractor who, in the provision of benefits, discriminates between employees with spouses and those with domestic partners, or discriminates between the domestic part- ners and spouses of those employees.

The requirement that each supervisor employed by the State, upon his or her ini- tial appointment to a supervisory position, be provided with a minimum of 80 hours of training was amended to specify that the training is to include training on the subject of employment law relating to persons with disabilities.

Drug and alcohol testing. The law govern- ing the application for an original or a re- newal commercial motor carrier permit now requires that the application include certifi- cation of enrollment in a controlled substance and alcohol use and testing program.

Worker privacy. The law providing for the confidentiality of peace officer or custodial officer personnel records was amended to provide that the provisions insuring confi- dentiality do not apply to investigations or proceedings concerning the conduct of peace officers or custodial officers, or an agency or department that employs these officers, con- ducted by a grand jury, a district attorney’s office, or the Attorney General’s office.

Private employment agencies. The State Business and Professions Code, relating to contractors, was amended. The term con- tractor now includes temporary labor ser- vice agencies that provide short-term em- ployees to a licensed contractor for the per- formance of construction work. Such con- tractors are now required to provide their State contractor’s license number to the tem- porary labor service agency providing the short-term employees. The law does not apply when a properly licensed contractor exercises supervision and is directly respon- sible for the final results of the work prod- uct. The law does not require that a qualify- ing individual be present during the supervi- sion of work covered by the contract.

Plant closing. The law that requires the op- erator of a solid waste landfill to submit a plan for the closure and post-closure main- tenance of the landfill to the California Inte- grated Waste Management Board was amended to also require submission of a La-

10

Monthly Labor Review

January 2004

bor Transition Plan that includes provisions that ensure, subject to any requirements al- ready established pursuant to a collective bargaining agreement, preferential reemploy- ment and transfer rights of displaced employ- ees to comparable available employment with the same employer for a period of no less than 1 year following the closure of the solid waste facility; provisions to provide displaced employees assistance in finding comparable employment with other employ- ers; and provisions to ensure compliance with existing statutory requirements for re- locations, terminations, and mass layoffs that are applicable to certain employees.

Displaced workers. A 10-percent bidding preference was established for public transit contractors and subcontractors who agree to retain, for a period of at least 90 days, bus and rail employees who were employed to perform essentially the same services by the previous contractor or subcontractor. If a successor contractor or subcontractor deter- mines that fewer employees are needed than under the prior contract, qualified employ- ees will be retained by seniority within the job classification. The existing contractor, when required by the awarding agency, must provide employment information relating to wage rates, benefits, dates of hire, and job classifications of employees under the exist- ing service contract to the awarding author- ity or a successor contractor. Acontractor or subcontractor found to have substantially breached the contract will be ineligible to bid on or be awarded a service contract with that awarding agency for a period of 1 to 3 years.

Whistleblowers. The law prohibiting employ- ers from making, adopting, or enforcing a policy that prevents an employee from dis- closing violations of a State or Federal law or regulation to a government or law enforcement agency, or from retaliating against an employee who makes a disclosure, was amended to ex- tend this protection to employees who refuse to participate in an illegal activity or activity that may result in violations of State or Fed- eral law or regulation. It was also made un- lawful for an employer to retaliate against an employee for having exercised his or her whistleblower rights in any former employ- ment. A “whistleblower hotline” is to be es- tablished in the office of theAttorney General to receive telephone reports of violations by an employer. Employers are to display a list of employee’s rights under whistleblower laws, including the telephone number of the hotline. An employer in violation of the law is liable for a civil penalty of up to $10,000 for each violation.

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