Most past legislation along these lines has tried to either require English-only in places of employment or allowed employers to require their employees to speak English.  Conservative California legislators made a half-hearted attempt at passing such a law a few years ago without gaining much traction.

As we have pointed out in the past, such laws are invalid because they violate Title VII of the 1964 Civil Rights Act, which specifically prohibits such policies unless there is an actual “business necessity” for them.  For example, a nurse could be required to speak only English to a doctor during surgery.  However, upon further examination I discovered that the Tennessee bill does not even try to defy federal law.

The Tennessee bill is an example of the worst kind of law:  one that has no valid purpose except to pick on a minority group.  All the law does is restate the Title VII language that allows such a policy only where there is a “business or safe workplace necessity” for it.

The law waters down its language even further by stating that an employer cannot require English-only when an employee is on a break or talking to co-workers.  Essentially, the law can be re-stated as follows:  “Employers can require an employee to speak English, but only if it is necessary for them to do so”.

In short, all the Tennessee law does is restate federal law, but in a deceptive way.  Instead of saying that English-only policies are illegal except where justified by business necessity, it purports to give employers permission (or even encourage them) to create such policies if necessary, which likely is not a problem to begin with and employers are already free to do under federal law.

All states in this country are in the middle of a fiscal crisis that is putting their legislatures’ budgetary skills to the test.  There are not enough hours in the day for most of them to come up with solutions to their states’ most pressing problems.  However, Tennessee’s legislature apparently decided that writing and passing a law that has no legal affect on anyone whatsoever, but instead tries to ostracize those who either do not speak English or have difficulty doing so.  That is just mean.

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Discrimination | National Origin Discrimination | Policy : Legislation | Policy : Opinion | Race Discrimination

Currently, under Title VII of the 1964 Civil Rights Act such an "English-only" policy is considered national origin discrimination. There is a "business necessity" exception to this rule where speaking English is necessary to do the job. For example, a nurse who assists with surgeries must be able to speak English to communicate with the medical staff.

This amendment is unlikely to pass and is likely just pre-election posturing to bring the debate over immigration into the forefront of the electorate's consciousness.

However, most employees in California would not be affected by such a change, because California's Fair Employment and Housing Act also prevents English-only policies and is far more protective than Title VII in virtually all respects.

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California Employment Law | Discrimination | Hostile Work Environment | National Origin Discrimination | Policy : Legislation | Race Discrimination

SB 836

Senate Bill 836 was heralded nationwide as the first law prohibiting employer discrimination against employees based on their "family status".

For example, discrimination against employees who are single parents who have to take their child to the doctor would be prohibited. Also, if the child is sick at home and has nobody else to care for them, the employee could actually take protected, unpaid leave to do so.

I think this bill was a step in the right direction, but I do have to agree that its reach was far to broad to avoid the Governor's veto stamp. If certain limits can be added to the measure to keep its use reasonable, I believe the legislature can pass a satisfactory bill in the near future.

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California Employment Law | Discrimination | Family Medical Leave | Family Status Discrimination | Medical Leave Discrimination | News | Policy : Legislation

1. The employee's seriously ill children (regardless of their age);
2. The employee's seriously ill in-laws;
3. The employee's seriously ill grandparents or grandchildren;
4. The employee's seriously ill sibling; or
5. The employee's seriously ill domestic partner.

SB 549

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California Employment Law | Family Medical Leave | Medical Leave Discrimination | News | Policy : Legislation

This is the first in a series of posts on several important employee rights bills that the legislature passed this year, but the Governor vetoed last month.

AB 1707

Assembly Bill 1707 created a $750 penalty provision against employers who refuse to provide employees access to their personnel files.

Employees in California have a statutory right to view almost anything in their personnel files. However, there has never been any penalty in place for employers who refuse to comply with this law.

If an employer refuses to grant access to the employee's file, the employee could bring a lawsuit, but other than ordering the employer to open the records, the court has not real power to punish employers who willfully break this law.

This modest penalty would have provided an employer with more incentive to comply with the law, but since the bill was vetoed employees are left with no threat of any monetary penalty to use against employers who know they really have nothing to lose for refusing to follow the law.

AB 435

Assembly Bill 435 is similar to AB1707. It was a bill that proposed allowing employees to recover double damages from their employers if they do not pay their employees the minimum wage.

Like the law granting access to personnel files, California's minimum wage law allows employees to sue to recover their unpaid wages, but there is no additional penalty they can recover from their employer if they win.

Essentially, the law is currently set up so that an employee who is already making less than minimum wage to begin with must pay an attorney to sue in court and recover their wages, with nothing extra awarded for their trouble (and no further penalty to the employer for not paying).

This law was an attempt by the legislature to provide for stiff penalties against employers who prey on the employees who need the money the most (sometimes not paying their employees at all), but apparently Mr. Schwarzenegger believed no such penalties were needed under the law.

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California Employment Law | Minimum Wage | News | Personnel Files | Policy : Legislation | Wages and Hours

Governor Schwarzenegger signed Assembly Bill 392 into law last month and it became effective immediately. The Bill has two main components:

1. An employer of more than 25 people must provide an employee with up to 10 days of unpaid leave when their spouse is on leave from military duty; and
2. The employer is prohibited from retaliating against a qualified employee for requesting or taking this leave.

To me, one of the most surprising aspects of this law is that the employer must grant the leave, regardless of the circumstances-no exceptions. This is uncommon in employment law where there are usually at least some exceptions where the employer can deny the leave.

Under the Family Medical Leave Act, for example, non-emergency medical leave requests the employer can make the employee wait to take the leave if they are a "key employee" or if it is a very busy time of the year for the employer. Other leave laws allow similar exceptions where it will cause a "hardship" on the employer.

However, under this new California leave law, it looks like employers have no right to deny the leave request, no matter how essential it is that the employee be at work. This does make sense, of course, because the employee's spouse will only be off of leave during a set period of time.

This is a very interesting development in the law and the fact that it went into effect immediately makes me wonder how many spouses and military personnel know about it. If you know someone who has a spouse in the military, be sure to remind them of this opportunity to take time off from work to be with their spouse!

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California Employment Law | Discrimination | Family Medical Leave | Marital Status Discrimination | Medical Leave Discrimination | Military Discrimination | News | Policy : Legislation | Retaliation