New Employment Laws for 2013
The California legislature is always busy making new laws. And making laws that impact employers seems to be a favorite. Here is a rundown of several new laws that affect employers for 2013.
1. Social Media Access
California employers are now forbidden from requiring or requesting current employees or applicants to (a) reveal their username or password so the employer can access their social media; (b) access their social media in the presence of the employer; or (c) disclose any social media to the employer. Social media is defined broadly to cover not only sites such as Facebook and Twitter, but also e-mail and text messages.
There are a few exceptions: Employers can ask an employee to divulge social media if there is reason to believe that it is relevant to an investigation; employers may access the username and password information if they need to access an employer-issued electronic device; and employers may still terminate employees or take other adverse action if such action is permitted by law.
2. New Pregnancy and Disability Regulations
Various new disability and pregnancy regulations were approved and became effective December 30, 2012. The regulations provide greater protections and seek to prevent workplace discrimination. The disability regulations define mental and physical disability more broadly and list new examples of disabilities, including autism spectrum disorders, clinical depression, post-traumatic stress disorder, obsessive compulsive disorder, cerebral palsy, HIV/AIDS, seizure disorder, multiple sclerosis, and heart disease. The regulations also include standards for determining when a job function is essential, and provides examples of possible reasonable accommodations. In addition, the term “mental retardation” has been replaced with the term “intellectual disability” in various California statutes.
The pregnancy regulations clarify the employer’s obligation to reasonably accommodate pregnant employees, employees affected by pregnancy or employees who are perceived to be affected by pregnancy. The new regulations give examples of reasonable accommodations such as adjusting work duties, or work schedules, or requiring the purchase of necessary equipment. The regulations also state that it is illegal for an employer to transfer an employee to a less strenuous or hazardous position if the employee objects to the transfer. The regulations also clarify that the unpaid “four month leave” should be calculated based on the number of days the employee would normally work within the four calendar months. Employers are also now required to provide written notice to any pregnant employee of their rights and obligations. The regulations also modified the notices that must be given to pregnant employees. The new regulations and notices can be found here.
3. Commission Agreements Must Be In Writing
The 2011 law requiring commission agreements to be in writing is now in full effect. If you are paying any employee commissions, you need to put the agreement in writing and describe the method that is used to compute and pay commissions. The employer must give the employee a signed copy of the agreement and get a signed receipt for the contract from the employee.
4. Breastfeeding Protections
A new law provides further protection to breastfeeding mothers. The FEHA prohibits discrmination on the basis of “sex”. The definition of “sex” has changed over the years to include gender, pregnancy, childbirth and medical conditions related to pregnancy and childbirth. The new law now adds breastfeeding and medical conditions related to breastfeeding to the FEHA’s definition. This new law is also consistent with another law that requires employers to give reasonable break time and a private place for mothers to express breast milk at work.
5. Religious Dress and Grooming Protections
The protections against discrimination on the basis of religion have been expanded to include religious dress and grooming practices. Religious dress practice includes the wearing or carrying of religious clothing, head or face coverings, jewelry or artifacts. Religious grooming practice includes all forms of head, facial and body hair that are part of an employee’s observance of the employee or applicant’s religion. The law also provides that it is not an acceptable accommodation to segregate the employee from the public or other employees.
6. Inspection of Personnel Records and Wage Statements
California now requires employers to provide employees the opportunity to inspect or copy personnel records within 30 days of making the request. Employers must maintain personnel records for at least three years after the employee has left the company. The employer could also be subject to a monetary penalty if it fails to comply with a request.
Employers are also required to provide an accurate wage statement to its employees either semi-monthly or at the time of each payment. The wage statement must include at least nine categories of specific information and be maintained by the company for at least three years.
7. Fixed Salary for Non-Exempt Employees
It may be common practice in your industry to pay non-exempt employees a fixed salary that includes all overtime worked. California’s new law specifically forbids this practice. Now, the payment of a fixed salary to a non-exempt employee will only compensate the employee for the employee’s regular non-overtime hours, even if there is an agreement with the employee stating otherwise.
8. Changes to the Fair Credit Reporting Act
The Consumer Financial Protection Bureau (“CFPB”) is a new entity that has been created to protect consumers and their financial information. When conducting criminal background reports, credit history reports or other background checks, newly revised notices must be given to the employee or applicant. The new notices direct consumers to the CFPB instead of the Federal Trade Commission (“FTC”) to obtain information about the individual’s rights. Employers must begin using the new forms now.
9. Meal periods
The California Supreme Court decision in Brinker v. Superior Court had a large impact on California employers. Before this decision, an employer could face penalties even if an employee voluntarily chose to miss a meal period. And employers were facing class-action claims based on missed meal-periods. Now, if an employer has a well-defined meal break policy that complies with Brinker, the employer will significantly reduce its exposure.
The Court held that the employer “need not ensure that no work is done during an employee’s meal period.” The employer satisfies their obligation to provide a meal break “if it relieves its employees of all duty, relinquishes control over their activities and permits them a reasonable opportunity to take an uninterrupted 30-minute break, and does not impede or discourage them from doing so.”
The Court also discussed the timing of meal breaks and clarified when they should be offered. The court held that “an employer’s obligation is to provide a first meal period after no more than five hours of work and a second meal period after no more than 10 hours of work.” This means that the meal period should begin no later than the start of the sixth and the eleventh hour of work.
Employment laws are always evolving. Please contact De Castro & Morrow so we can help you evaluate your current employment policies and any other employment related matter. Let’s be proactive together.
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