JANUARY 2002

I.
LEGISLATIVE/REGULATORY UPDATE

Minimum Wage Increase

This month, AB 181 (Koretz) regarding minimum wage was reintroduced. This bill, known as the Minimum Wage Protection Act, would require the minimum wage in California to be adjusted on January 1, 2003, and annually thereafter, to maintain employee purchasing power. The adjusted minimum wage would be calculated from the Federal Consumer Price Index. The bill states that its provisions will not be construed to prevent an increase greater than the formula would provide. The bill is currently before the Appropriations Committee.

Effective January 1, 2002, California's minimum wage increased to $6.75 per hour. The rise in the minimum wage directly affects the salary requirement for exempt executive, administrative, and professional employees. The minimum salary level each month for most exempt executive, administrative, and professional employees is two times the minimum wage for full-time employment.

Rules on H-1B Petitions and Electronic Filing

Due to the changes Congress made in 2000 with the passage of the "American Competitiveness in the Twenty-First Century Act," the Immigration and Naturalization service ("INS") is planning to publish a proposed rule reflecting the changes made by the measure. As the legislation made significant changes to the H-1B classification, the regulations will seek to clarify questions of interpretation, and to streamline INS procedures.

A new rule published by the Department of Labor ("DOL") will allow employers hiring highly skilled, temporary foreign workers through the H-1B Visa program to fill out the required labor condition applications electronically. Employers will be able to submit labor condition applications through the DOL website at www.lca.doleta.gov. A filing via the website will provide either a denial or certification within minutes. Once a labor condition application is certified, it may be printed, signed by the employer, and submitted with the H-1B petition. The new rule became effective on January 14, 2002.

Update on FTC Opinion Regarding Employee Investigations

Last month, the House Financial Services Committee sent a letter to the Federal Trade Commission ("FTC") asking that the FTC rescind the opinion letter stating that employers who use third parties to conduct employee misconduct investigations must comply with the Fair Credit Reporting Act ("FCRA"). Also, H.R. 1543 (Civil Rights and Employee Investigation Clarification Act) has been introduced to amend the FCRA to create an exemption for certain types of employee investigations.

II.
JUDICIAL UPDATE

United States Supreme Court Narrows ADA

The United States Supreme Court made it more difficult for millions of employees with wrist injuries, bad backs, or similar impairments to qualify for protection as disabled individuals under the federal anti-discrimination law, the Americans with Disabilities Act ("ADA.") As long as they can brush their teeth and wash their faces in the morning, these employees are probably not disabled, the high court said unanimously, even if they suffer pain when typing on a computer or lifting a box at work.

A disabled person is someone who struggles to do basic tasks that are "central to daily life," not the special tasks that go with a particular job, said Justice Sandra Day O'Connor, writing for the court.

Moreover, she opined, a disabled employee must have an impairment that is "permanent or long term," not an injury that is likely to heal. Injured employees should seek benefits under state workers' compensation laws, the court said, rather than claiming to be disabled under the ADA.

The case concerned an assembly line worker who could no longer do her job because its repetitive motions caused intense pain in her wrists and shoulders. Her condition, carpal tunnel syndrome, is a common workplace injury. Ella Williams had worked with power tools at a Toyota Motors plant. When her pain became crippling, she sought medical treatment and obtained some benefits from Kentucky's workers' compensation system. Williams chose to return to full-time work but asked to be assigned to lighter duties, such as inspecting cars. Her doctor said she should lift no more than 20 pounds. When her supervisors refused to accommodate her request, she quit and sued the company under the ADA.

An appellate court sided with Williams and said her injury was akin to having "damaged or deformed limbs." Because she was unable to perform "a class of manual tasks at work," Williams had a disability and her employer should have made a "reasonable accommodation" for her, the appeals court said. Disagreeing, O'Connor faulted the lower court for focusing its attention on the workplace.

To be disabled, a person "must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people's daily lives," she said. This includes "such basic abilities as walking, seeing and hearing." Beyond that, "household chores, bathing and brushing one's teeth are among the types of manual tasks of central importance to people's daily life," she continued. Despite the fact that Williams could not handle power tools, "she could still brush her teeth, wash her face, bathe, tend her flower garden, fix breakfast, do laundry and pick up around the house," she wrote in her opinion for the court. Because Williams was capable of performing these daily tasks, she was not a truly disabled person, O'Connor concluded.

Unfortunately, Williams will likely have little impact upon the enforcement of disability claims under the California Fair Employment and Housing Act, which subjects California employers to much broader rules than those imposed by the ADA.

California Court Upholds E-Mail Trespassing

In Intel-Corporation v. Hamidi, a former employee of Intel used the company e-mail to air grievances after his employment was terminated. Intel argued that such actions interfered with its proprietary network, diminished employees' productivity, and forced the company to spend money responding to the six confirmed e-mails sent. The Sacramento County Superior Court upheld Intel's claim, granting that such actions constituted trespassing. The former employee argued his actions were protected by the First Amendment and appealed the trial court's judgment to the court of appeal, which upheld Intel's claim. Thus, unauthorized use of a company's computer system may be considered trespassing, allowing employers to seek court orders against such interference if it disrupts worker productivity. Companies should consider implementing a written policy prohibiting employee e-mail use that interferes with employee productivity to protect from similar situations.

If you would like to discuss these or any other employment law matters, please do not hesitate to contact any member of Klinedinst's Employment Law Department.