2013 Employment Laws: In September 2012, California Governor Jerry Brown enacted a number of laws relating to employment law. It is important that employers are familiar with the changes in order to ensure compliance. The following list includes that changes made which, unless stated otherwise, will go into effect January 1, 2013:
As a background, FEHA stands for the California’s Fair Employment and Housing act, which prohibits employment discrimination based on race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age or sexual orientation.
Religion and Reasonable Accommodation:
Under the requirements of FEHA, assuming no undue hardship, an employer is required to reasonably accommodate the religious belief or observance of an employee. Assembly Bill 1964, will clarify the provision to expressly include “religious dress practice” and “religious grooming practice” as part of the definition of religious “belief or observance” which must be accommodated.
AB 1964 amends Government Code sections 12926 and 12940 to provide the following definitions:
“Religious dress practice” is construed broadly to include the wearing or carrying of religious clothing, head or face coverings, jewelry, artifacts and any other item that is part of the observance by an individual of his or her religious creed; and
“Religious grooming practice” is also to be construed broadly and includes all forms of head, facial and body hair that are part of the observance by an individual of his or her religious creed Importantly, the law specifies that an accommodation is “not reasonable” if the accommodation requires segregation of the individual from other employees or the public.
The bill also specifies that an accommodation which would require the employee to be either segregated from other employees or the public, such as being assigned to the stock room, will no longer be considered a reasonable accommodation.
Sex Discrimination and Breastfeeding
Assembly Bill 2386 expands FEHA to prohibit discrimination against breastfeeding mothers. Under the existing law, FEHA’s statutory definition of “sex” includes gender, pregnancy, childbirth, and medical conditions related to pregnancy or childbirth. The bill adds “breastfeeding” and “medical conditions related to breastfeeding” to the definition of “sex”.
Furthermore, the bill states that its changes are declaratory of existing employment law. and although the amendment takes effect on January 1, 2013, employers should treat these changes as effective immediately.
Social Media and Personal Passwords
Assembly Bill 1844, an addition of section 980 to the California Labor Code, restricts employers from requesting access to social media. The code defines “social media” as an electronic service or account, or electronic content, including, but not limited to, videos, still photographs, blogs, video blogs, podcasts, instant and text messages, email, online services or accounts, or Internet Web site profiles or locations. Specifically the bill prohibits an employer from requiring or requesting an employee or job applicant to do any of the following:
- Disclose a username or password for the purpose of accessing personal social media,
- To access personal social media in the presence of the employer, or
- To divulge any personal social media
The bill also prohibits employers from retaliating by discharging, disciplining, threatening or any other method, against an employee or applicant for not complying with a request by the employer which violate these provisions.
However, a limited exception will allow employers access for the purpose of an investigation into employee misconduct or violations of law.
Inspection of Personnel Records
Existing law under California Labor Code section 1198.5 gives employees the right to inspect their personnel files. Assembly Bill 2674 amends the Labor Code to settle some previously confusing aspects of the process. First, employers are now required to retain personnel files for at least three years following termination of an employee. Second, an employer must respond to a written request for personnel files by a current or former employee (or their representative) within 30 days. However, the employer is not required to comply with more than 50 requests for copies of personnel records in one calendar month.
The law also specifically details where and how the records must be made available, including copies, what information can be redacted from the file and penalties for failure to comply.
Itemized Wage Statements/Temporary Service Employers
Under the California Labor Code section 226, at the time of each payment of wages, an employer has to furnish to the employee an itemized statement in writing showing specified items which includes all applicable hourly rates in effect during the pay period and the corresponding number of hours the employee worked at each hourly rate. Assembly Bill 1744, effective July 1, 2013, amends section 226 so that temporary services employers must also include the rate of pay and the total hours worked for each temporary services assignment. Licensed security services companies are excluded from this legislation.
Additionally, the bill amends California Labor Code section 2810.5 which requires employers to provide a wage and employment notice to nonexempt employees at the time of hire. The amendment will require temporary services employers to include the name, physical address of the main office, mailing address if different from the physical address of the main office, and the telephone number of the legal entity for whom the employee will perform work, as well as any other information the Labor Commissioner deems material and necessary. Again, licensed security services companies are excluded.
Penalties for Wage Statement Violations
Senate Bill 1255 defines “injury” under California Labor Code section 226 for failure to comply with the itemized wage statement requirements. If an employer knowingly or intentionally fails to provide the specified information, both accurate and complete, on wage statements at the time wages are paid, an employee is deemed to have suffered an “injury” and is entitled to recover damages from the employer under the statute, even in the absence of an actual injury caused by the alleged deficiency in the wage statement.
Assembly Bill 2675 amends California Labor Code section 2751. The section which was to go into effect January 1, 2013, required that when an employee is to be paid commission a written contract which set forth the methods by which the commissions are to be computer and paid are required. The amendment refines the definition of “commission” to exclude temporary, variable payments that increase, but do not decrease, payment under the written contract.
Fixed Salaries and Overtime
Except in specified instances, current law requires payment of overtime compensation when employees work over 8 hours a day or 40 hours a week. Assembly Bill 2103 amends California Labor Code section 515(d) to provide that regardless of the agreement between an employee and an employer, the payment of a fixed salary to a nonexempt employee shall be deemed to provide compensation only for the employee’s regular, non-overtime hours. Further, the amendment provides that overtime shall be calculated by dividing the weekly salary by no more than 40 (the maximum number of non-overtime hours per week) and multiplying by 1.5 in order to get the applicable overtime rate which is to be paid for each hour of overtime work.
The Wage Garnishment Law governs the amount of earnings that may be subject to earnings withholding order which currently allow no more than 25% of an individual’s weekly disposable earnings or the amount by which the individual’s disposable earnings for the week exceed 30 times the federal minimum hourly wage. Assembly Bill 1775, effective July 1, 2013, defines “disposable earnings” as the portion of earnings that remain after deducting all the withholdings. Effectively, the bill increases the amount of wages that are exempt from garnishment and prohibits them from exceeding the lesser of 25% of the individual’s weekly disposable earnings or the amount by which the individual’s disposable earnings for the week exceed 40 times the state minimum hourly wage in effect at the time the earnings are payable.
Human Trafficking Posting
Senate Bill 1193 will require that specified businesses post an 8.5” by 11” notice, on or before April 1, 2013, in a conspicuous place which includes information related to two nonprofit organizations that provide services in support of the elimination of slavery and human trafficking.
FEHC Eliminated, Duties Transferred to the DFEH
Senate Bill 1038 will eliminate the Fair Employment and Housing Commission, effective January 1, 2013, and transfer their duties to the Department of Fair Employment and Housing. The bill creates a Council to take over the power and duties of the commission, and an Enforcement and Litigation Fund in the State Treasury.
Additionally, the bill would expand specified powers of the department and provide mandatory dispute resolution at no cost to the parties involved, as specified. The bill would eliminate a specified cap of actual damages under the act, and would instead require certain actions be brought in court by civil action, rather than by accusation by the department.
Farm Labor Contractors
Assembly Bill 1675 increases the penalties for failing to license farm labor contractors. Under section 1683 of the Labor Code, farm labor contractors must be licensed by the Labor Commissioner and comply with specified employment laws. As the law stands, a person who violates farm labor contractor requirements is guilty of a misdemeanor punishable by specified fines, imprisonment or both. In addition, the bill will subject violators to citations issued by the Labor Commissioner and civil penalties that increase as the number of citations for violations increase.
Existing labor law, California’s Labor Code section 2810, prohibits a person or entity from entering into a contract with specified types of contractors (construction, farm labor, garment, janitorial, or security guards) if the person or entity knows or should know that the agreement does not include sufficient funds to allow the contractor to comply with all applicable local, state, and federal laws or regulations governing the labor or services to be provided. Assembly Bill 1855 extends section 2810 to include “warehouse workers” to the list of specified contractors.
2013 Employment Laws
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