New California Law Requires Sexual Harassment Training
By Matt FordOn September 30, 2004, AB 1825 became law (California Government Code Sec. 12950.1), which requires employees with 50 or more employees to provide 2 hours of training and education to all supervisory employees by January 1, 2006. If an employer has provided sexual harassment training and education to employees after January 1, 2003, it is not required to meet the 2006 deadline. After January 1, 2006, the new law requires each employer to provide sexual harassment training and education to each supervisory employee once every 2 years.
For purposes of the Harassment Training requirement, the 50 employee requirement includes temporary employees, independent contractors, regular and part time employees. The employee count also applies to California employers with 50 total employees, including those working outside of the state.
The law provides that failure to perform the training to a particular individual does not automatically result in the employer's liability for sexual harassment, and an employer's compliance with these provisions does not insulate the employer from liability for sexual harassment. The law establishes a minimum threshold for training and education and employers may provide training and education beyond that required by the statute to prevent and correct sexual harassment and discrimination. However, because the training requirement is now part of California's anti-harassment and discrimination laws, failure to do the training may be evidence of a failure to prevent harassment, or worse, punitive damages.
The training itself must provide for "classroom or other effective interactive training and education regarding sexual harassment" laws, policies and procedures. Thus, simply playing a videotape, without more, will likely not meet the requirements of the Government Code's training requirements. Instead, employers must utilize experienced and knowledgeable educators to conduct the training, such as experienced employment attorneys or trained human resources personnel.
Both California and Federal courts have held that employers may utilize an affirmative defense to some sexual harassment claims by showing that they (1) exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (2) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. Harassment training and prevention programs can assist in establishing the first prong of this two-prong defense. If employers do not provide harassment training, despite the fact that it was mandated by corporate policy, an employer will likely be unable to establish the affirmative defense. Courts have also held that providing sexual harassment training may be used as a means of defending against a claim for punitive damages in sexual harassment cases. The new statute provides only a "minimum threshold and should not discourage or relieve" any employer from providing "longer, more frequent, or more elaborate training and education regarding workplace harassment." Therefore, it is important for employers to utilize harassment training programs even if they do not meet the 50 employee minimum referenced in the statute.
Greenan, Peffer, Sallander & Lally LLP has extensive experience in conducting training programs that comply with the new harassment training provision. For more information about this new sexual harassment training requirement or programs and training sessions we can provide, please contact us.
Minimize Your Risk Of Identity Theft
Whether we like it or not, identity thieves are resourceful. Their methods are as varied as the ways in which consumers need to use some form of identification to initiate and complete transactions. It can all be confusing and intimidating, but consumers need not feel helpless against the expanding threat of identity theft. For most of the tactics used by the bad guys, there are countermeasures for consumers. These measures cannot completely insure that a consumer's identity is safe, but the odds of becoming a victim decline with each protective step taken. What follows is a nonexhaustive collection of safeguards you can put in place to lower the chances that a stranger will do you harm, even as he adds the insult of pretending to be you.In the Short Term
* Obtain, review, and insure the accuracy of your credit report from each of the three major credit bureaus. These reports have information on where you work and live, your credit accounts, how you pay your bills, and whether you have been sued or arrested or have filed for bankruptcy.
* Use random passwords on your credit card, bank, and telephone accounts rather than birthdays, initials, or other obvious passwords.
* Make sure that the personal information in your home is secure, especially when you have roommates, employ outside workers, or have service and repair work done in your home.
* Look into security procedures for personal information at work. You should be able to find out who can access your information, how your records are kept secure, and what the employer's procedures are for the disposal of records.
Good Habits to Acquire
* Unless you initiated the contact or you know to a certainty whom you are communicating with, do not give out personal information over the telephone, through the mail, or over the Internet. Before sharing information with an organization, use a website or telephone directory to check on its legitimacy.
* Remove your regular mail as promptly as possible from your mailbox before a would-be identity thief beats you to it. For outgoing mail, put it into a collection box rather than leaving it to be picked up from your mailbox. Let the Postal Service hold your mail if you are going to be away.
* Yes, it may sound like overkill at home, but it still makes sense to shred or tear up all those discarded charge receipts and similar papers with personal information. There are people out there more than willing to go through your garbage if it means they get to use your credit cards.
* Travel light, financially speaking. Carry only such identifying information, or credit and debit cards, as you will actually need.
* Stay on top of the timing of your credit card bills. A late or missing bill may be a sign that a thief already has taken over your account.
* Approach promotional contacts with a healthy skepticism. Phony offers are too often successful in getting personal information straight from the victim himself.
* Secure your Social Security number. Keep the card itself in a safe place, not on your person. Ask questions and be satisfied by the answers if any person or business asks for your number. There are some legitimate reasons for giving out your number, but it is not a good enough reason when a business simply wants your number as part of its standard recordkeeping.
Cyber Danger
Computers have their own unique set of threats to the security of your identity, but there is good advice for the wary here, too. Update virus protection software regularly. Do not download files or click on hyperlinks coming from strangers. Use a secure browser and a firewall program, especially if you use a high-speed Internet connection. Avoid storing financial information on a laptop but, if you must, use a strong, random password, do not use an automatic log-in feature, and always log off when you are finished.
More Business Eligible For C-EZ
The Internal Revenue Service introduced Schedule C-EZ, a simplified expense form, for use by small businesses preparing Form 1040. The IRS recently announced that it will expand the number of small businesses eligible to use the form by 15%, or about 500,000 businesses, beginning with tax year 2004.The greater availability of Schedule C-EZ will be accomplished by doubling the business expense threshold for businesses that can use the form from $2,500 to $5,000. This change could save as much as five million hours of paperwork for small business taxpayers.
Business Liable For Not Investigating Credit Complaint
Four years after Edward opened a credit card account with one of the major credit card companies, he married Linda. Linda became an authorized user of the card, but she was not, as the credit card company would later claim, a co-applicant for the card. Some years later, without telling Linda, Edward filed for bankruptcy. The credit card company took Edward's name off of the account and notified Linda that she was responsible for the balance on the account, which amounted to many thousands of dollars. After she learned about Edward's secretive bankruptcy, Linda left Edward. But when she tried to buy a condominium on her own, she could not qualify for a mortgage because of the big credit card debt that showed up on her credit record.Linda's efforts to free herself from the effects of Edward's overspending began by getting copies of her credit reports from all three major credit reporting agencies. These reports confirmed her worst fears, showing her as being legally responsible for the credit card balance. Linda notified the reporting agencies that she disputed the fact that she was obligated on the account, and the agencies informed the credit card company of Linda's position.
In response to learning that Linda was challenging her responsibility for the debt, the credit card company was required by the federal Fair Credit Reporting Act to conduct an "investigation" regarding the disputed information. The nature and extent of that investigative duty became the focus of Linda's lawsuit under the Act. She filed suit when the company continued to maintain that Linda was responsible for the debt, thereby leaving in place the black cloud over her credit picture.
Linda won her case, with an award of damages for good measure. The credit card company had not satisfied its duty to investigate. After hearing from the credit reporting agencies, the company simply confirmed that the disputed information provided by the agencies matched the account information in its computer system. This cursory review was no "investigation." Federal law required the creditor to look beyond the bare information in its customer information system, such as by consulting underlying documents. In this case, the most important document would have been the credit card application submitted by Edward. As it happened, the company had lost the application, but that did not get it off the hook. Had the company done enough to discover that the key document was missing, it at least could have informed the credit reporting agencies that there was no conclusive proof that Linda was responsible for the credit card debt.
FDIC Insurance For Revocable Trusts
In 2004, the Federal Deposit Insurance Corporation (FDIC) put in place new rules for insurance coverage of living trust accounts in FDIC-insured institutions. A living trust, sometimes called a family trust, is a formal revocable trust. Its owner specifies who will receive the trust assets when the owner dies. During his or her lifetime, the owner, also known as a grantor or settlor, maintains control of the trust assets and has the power to make changes in the trust.The owner of a living trust account is insured up to $100,000 per beneficiary if each of the following three requirements is met:
(1) The beneficiary must be the owner's spouse, child, grandchild, parent, or sibling. Not every relative qualifies. For example, cousins, nieces, and nephews do not qualify, but stepparents, stepchildren, and adopted children do.
(2) The beneficiary must become entitled to his or her interest in the trust when the owner dies. FDIC insurance coverage would be based on the beneficiaries who satisfy this requirement as of the time when a bank fails.
(3) The title of the account at the bank must indicate, with terms such as "living trust" or "family trust," that the account is held by a trust.
While insurance coverage is based on the actual interests of each beneficiary, the FDIC will assume that the beneficiaries have equal interests in the trust account unless the trust states otherwise. By way of a simple example, if a father has a living trust leaving all of the trust assets equally to his three children, the account would be insured up to $300,000. The total coverage consists of $100,000 for each of the three qualifying beneficiaries, who would become owners of the trust when their father dies.
Real Estate Roundup
Final Rules on Capital GainsThe Internal Revenue Service has issued its final rules on the capital gains tax exclusion that is available on the sale of a taxpayer's principal residence. A taxpayer may exclude up to $250,000 from the sale of a principal residence, and the exclusion doubles to $500,000 for married taxpayers. However, the taxpayer must have owned and used the property as a principal residence for a total of at least two of the five years before the residence is sold.
The final rules focus on the part of the Internal Revenue Code that allows a taxpayer who fails to meet the above condition to still have an exclusion in a reduced amount. There are three grounds for claiming a reduced exclusion: change in employment, health, and unforeseen circumstances. For each of these grounds, the regulations provide a general definition and one or more "safe harbors"--specific reasons for the sale of the residence. If the safe harbor for a particular ground applies, a sale (or exchange) is deemed to be "by reason of" that ground. If no safe harbor applies, the taxpayer still can claim one of the grounds on the basis of all of the surrounding facts and circumstances.
For example, the safe harbor for claiming a reduced exclusion because of a change in employment applies when the new place of employment is at least 50 miles farther from the residence that was sold than was the former place of employment. As for health, the safe harbor that smooths the way for the reduced exclusion is a physician's recommendation of a change of residence for reasons of health. A sale or exchange of a residence due to unforeseen circumstances refers to the occurrence of an event that the taxpayer could not reasonably have anticipated before purchasing and occupying the residence. Simply wanting to move to a preferred home or moving due to improved financial circumstances does not qualify. The specific events that make up the safe harbor for this ground include, among other things, such circumstances as death, divorce, natural or man-made disasters affecting the house, and even multiple births from a single pregnancy.
Handicapped Accessible
In its role as enforcer of the Fair Housing Act (FHA), the U.S. Department of Justice sued the developer of, and architects for, two apartment complexes. The government won an injunction against any further construction and occupancy of the apartment buildings.
Among the detailed requirements in the FHA for accessibility for the disabled is a requirement that "common areas" for multifamily dwellings be readily accessible to and usable by handicapped persons. In the case under consideration, the focus was on the landing area shared by two ground-floor apartments in each complex. The front door for each of the apartments was located there, but it was not handicapped accessible because the landing could only be reached by descending stairs. The apartments also had a rear entrance from the apartments' patios that was handicapped accessible, but it was located farther from the parking lot.
The defendants argued that the FHA only requires that there be at least one accessible route into and out of each apartment, and that the patio entrance for each ground-floor unit met that requirement. The federal court disagreed. All it took to make the landing area a "common area" was that it was shared by at least two units, and that was so in the case before the court. The FHA clearly mandates that the common area, which in this case was at the front-door entrance to the apartments, be handicapped accessible.
For more information, contact:
Robert L. Sallander, Jr
Managing Partner
6111 Bollinger Canyon Road, Suite 500
San Ramon, CA 94583-0010
Telephone: 925-866-1000
rsallander@gpsllp.com
www.gpsllp.com